PIL NOTES

MODULE 1

RELATIONSHIP BETWEEN DOMESTIC AND IL

 Vertical structures emerge from inter-relationships between domestic and

international law.
 Enforcement of IL requires changes in domestic law to give effect to the former.
This is done by ratification.
 For example, India’s commitment to reduce global warming via carbon credits (a
permit which allows a country or organization to produce a certain amount of
carbon emissions and which can be traded if the full allowance is not used) may
require it to realign its market to this commitment. An instance of it doing so is
Renewable Purchase Obligations (RPO). This a mechanism by which the State
Electricity Regulatory Commissions are obliged to purchase a certain percentage
of power from renewable energy sources (https://mnre.gov.in/file-
manager/UserFiles/Solar%20RPO/analysis-of-state-RPO-regulations.pdf).
 In domestic law the prevailing legal system, either civil law or common law,
which usually translates to monism and dualism respectively, appears to be the
decisive factor in the determination of the status and importance given to
international law in relation to domestic law. In most cases, this is embodied in
Constitutional provisions which prescribe the procedure for ratification and
enforcement of international treaties and in some cases, the supremacy of
domestic law or international law over the other in cases of conflict between the
two.
 In this respect, a constitution of a country can be divided into two types depending
on its attitude towards adopting IL-
1. Monist
2. Dualist
 Monist- It is a self-executory system, prevalent in civil law countries. Derives
from the writings of Kelsen of Verdoss who considered international and
municipal law, though essentially different, as manifestations of a single
conception of law. Membership to an international obligation automatically results
it becoming a part of domestic law. Constitution prescribes the manner in which
the international law is automatically incorporated into the domestic law.
  Dualist- Derives from the writings of Bentham and other English positivist
thinkers who rejected the monist belief in the unity of domestic and international
law in favour of a distinction of domestic from international law on the basis of
the sovereignty of nations. Thus, IL requires to be ratified by the State legislature
to give effect to the obligation.
 The binding nature of the treaty at an international level can be discerned from the
wording of the treaty itself. Thus the treaty will itself prescribe if the international
obligation is binding on States upon signature or submission of ratifies document.
 This international obligation translates into a domestic one depending on
monist/dualist.

PUBLIC INTERNATIONAL LAW- AN INTRODUCTION

 Term “International law” was coined by Bentham. The earlier nomenclature was
“law of nations” for this subject.
 International law itself is divided into conflict of laws (or private international law
as it is sometimes called) and public international law (usually just termed
international law).
 There are two types of definitions for this term-
1. Traditional (Oppenheim, Hall, Broody, Fenwish, Lawrence, Hyde)
2. Modern (JG Starke, Friedmen)
 Some definitions-
1. Oppenheim- Law of Nations or International Law is the name for the body of
customary and conventional rules which are considered legally binding by the
civilized states in their intercourse with each other.
2. Revised definition of Oppenheim (9th edition)- International law is the body of rules
which are legally binding on states in their intercource with each other, These rules
are primarily those, which govern the relations of states, but states are not the only
subjects of IL. International Organizations, and to some extend individuals, may be
subject to the rights conferred and duties imposed by IL.
Clear shift in idea of IL- Takes into account that states are not the only subjects of
IL.
 3. J. L. Brierly- The Law of Nations or International Law may be defined as the body of
rules and principles of action, which are binding upon civilized states in their relations
with one another
4. Starke- International law may be defined as that body of law which is composed for
its greater part of the principles and rules of conduct which states feel themselves
bound to observe, and therefore, do commonly observe in their relations with each
other, and which includes also :
(i) The rules of law relating to the functioning of international institutions or
organisations, their relations with each other, and their relations with states
and individuals; and
(ii) certain rules of law relating to individuals and non-state entities so far as the
rights or duties of such individuals and non-state entities are the concern of the
international community.

“states feel themselves bound to observe”- indication of opinion juris

5. SS Lotus case (PCIJ< France v. Turkey, 1927)- Put forward a highly positivist
explanation of PIL as per which IL is binding upon states ONLY upon expressing
their own will to be bound. Thus, sovereign states may act in any way they wish so
long as they do not contravene an explicit prohibition.

THEORIES OF IL

The theories of IL differ on factors such as binding nature of IL, issues of consent and so on.

1. Naturalist Theory- The Jurists who adhere to this theory are of the view that
International Law is a part of the Law of the Nature. As per Starke has written, “States
submitted to International Law because their relations were regulated by higher law, the
law of Nature of which International Law was but a part.” Law of nature was connected
with religion. It was regarded as the divine Law. Natural Laws are original and
fundamental. They incorporate the will of the Governor and governed and advance their
consent or will. That is why international law is also based on natural law. Vattel
Furfendorf, Christain, Thamasius, Vitona are the main supporters of this theory. It was
viewed that natural law is uncertain and doubtful but it is accepted that Natural Law has
 greatly influenced the growth and has given the birth to International Law and its
development. Most of its laws are framed from Natural Law.

2. Austrian Positivist- idk

3. Hobbesian Utilitarian- rationalistic strand which acknowledged that nations follow
international law when it suits their interests
4. Bentham (English Analytical School) -It was Jeremy Bentham who first coined the word
international in a book published in 1789. The term appeared for the first time aligned
with the word jurisprudence. International jurisprudence was put forward by Bentham to
replace the term ius gentium or law of nations, what he deemed to be a misnomer.
Bentham believed in the need of a positive code of international law to replace the idea of
the “law of nations.”
5. Hans Kelsen- Kelsen's monistic theory of law, according to which international and
municipal law have the same subject-matter, paved the way for the dominant
contemporary doctrine: international law can encompass every aspect of human life
which warrants international legal protection of human rights.
Since, moreover, he considered physical coercion to be the very requisite of a legal
normative order, Kelsen was bound to look for such a coercive element in the
international order and found it in war. The experience of World War Two led Kelsen to
develop the doctrine of the ‘just war’ (bellum iustum) as the appropriate sanction for
violations of international norms, a theory which is hard to reconcile with his
condemnation of every form of natural law.
6. HLA Hart- Laws that impose duties or obligations on individuals are described by Hart as
"primary rules of obligation." In order for a system of primary rules to function
effectively, "secondary rules" may also be necessary in order to provide an authoritative
statement of all the primary rules. Found the latter to not exists in IL.
7. Command theory by Austin- Law is command of sovereign backed by sanction. Thus,
two types of law-
1. Law proper
2. Law improper- Since IL is POSITIVE MORALITY (works on moral sanctions
which gives a partially legal character, hence the use of word “positive”), it is
improper. No definite binding value.
8. New Haven School- Myers MCDOughal and W Michael Reisman- established decision-
making process under IL to be the source for the creation of a world public order
9. SS Lotus- (discussed later)

HISTORY OF IL

 While the modern international system can be traced back some 400 years, certain
of the basic concepts of international law can be discerned in political
relationships thousands of years ago.
 A solemn treaty signed in around 2100 BC between the rulers of Lagash and
Umma which decided the boundaries between them. Oath to the treaty by both
sides was to the powerful Sumerian Gods who were the guarantors of the treaty
 Most such Ancient treaties considered territorial sovereignty even though the idea
of nation states was yet to be conceived.
 In 1400 BC the king of Egypt Ramses entered into a treaty of Peace Alliance and
Extradition with the King of Cheta (territorial sovereignty exchange of refugees
and alliance)
 Empires in Egypt Persia etc signed treaties based on the equality of signatures
and the principle of pacta sunt servanda
 In ancient Greece set rules were set regarding conduct between cities. This was the
origin of development of consular protection to foreigners
 Regarding conduct of cities rules were set regarding the avoidance of war, it
should be commenced by a declaration etc
 In Ancient Rome before the time of conquest they used to enter treaties with Latin
cities around Rome.
 Further Rome recognised its relations with a foreigner on the basis of Jus Fetiale
(inviolability of ambassadors; formal declaration of war) and Jus Gentium
(regulated legal relations between Roman citizens and foreigners. It was based on
the principle of equity and bona fide and provided for citizenship)
 Further the doctrine of natural law was laid down in Rome and that served as a
precursor of human rights

Middle Ages

 During the MA the development of international law is questionable because of

the rise of the Church as an omnipresent entity. The distinction between the state
and the church vanished
  The confrontation b/w the papacy and German emperors on the matter of who had
the ultimate authority over Christian people lead to the revival of legal studies in
Italian universities
 Here legal arguments were based on romans and cannon law. This eventually
came to be part of customary international law.
 However, 2 sets of IL developed-
1. Lex Mercatoria- development of a common legal framework for trade (rules of
conduct and fair trade, pacta sund servanda etc.) This was mainly due to the
establishment of the Court of Pie Powder in England, which were special
courts that sat in times of public markets or fairs with exclusive jurisdiction
over disputes between merchants and consumers and any other dispute arising
as a result of the market or fair and on fair grounds.
2. Maritime customary law- High seas were established to be no-man’s land.
Rules of sea based on Rhodian sea law (codification undertaken by the
Byzantine empire) were widely accepted.

 The rise of the nation-states of England, France and Spain in particular

characterised the process of the creation of territorially consolidated independent
units, in theory and doctrine, as well as in fact. This led to a higher degree of
interaction between sovereign entities and thus the need to regulate such activities
in a generally acceptable fashion

 Law of nations were considered to be universal and natural law was applicable
between independent princes and commonwealth. State reason must prevail over
morals.
 Concept of just war and unjust war also developed

17th Century

 Concept of sovereignty territorial limitation and customary international law

developed

The essence of the new approach to international law can be traced back to the Spanish
philosophers. The leading figure of this school was Francisco Vitoria, Professor of Theology
at the University of Salamanca.
Francisco Vitoria - He demonstrated a remarkably progressive attitude for his time towards
the Spanish conquest of the South American Indians and, contrary to the views prevalent
until then, maintained that the Indian peoples should be regarded as nations with their own
legitimate interests

Jean Bodin- Put forward a general theory of state which included a modern take on
sovereignty. He termed it as the “most high, absolute, and perpetual power over the citizens
and subjects in a commonwealth”.

Alberico Gentili (1552-1608)- Gentili, who became a professor at Oxford, has been called the
originator of the secular school of thought in international law and he minimised the hitherto
significant theological theses.

Hugo Grotius- A Dutch scholar regarded as the father of international law.

Positivist- Grotius finally separated theology from international law and emphasised the
irrelevance in such a study of any conception of a divine law.

Revival of natural law thinking- He remarked that the law of nature would be valid even if
there were no God: a statement which, although suitably clothed in religious protestation, was
extremely daring. The law of nature now reverted to being founded exclusively on reason.
Justice was part of man's social make-up and thus not only useful but essential. Grotius
conceived of a comprehensive system of international law and his work rapidly became a
university textbook.

This also served as the first idea of awarding basic human rights on the sole basis of being
human (LOL).

Restricted subjects to states- His understanding of PIL is limited as it only applies to states.
He failed to expand the subjects to non-state actors like NGOs, International organizations
etc.

Peace Treaty of Westphalia

 There was a break up of feudal states and the emergence of free states
 In 1648 the thirty years war in Europe came to an end and lead to the birth of the
constitutional treaty of Europe
 Principle of Sovereignty, Territorial integrity and equality of states developed.
  There was a call for prevention of war and also there was a deprivation of a
defeated state’s territory
 This system continued till the defeat of Napoleon and was then adopted by the
1815 Congress of Vienna in order to establish new rights in Europe. This
essentially asked states to maintain peace and status quo prohibited slave trading
free navigation of rivers rules of war etc
 Thus, from 1648-1815, Classical IL took formation which led to the break-up of
feudal systems and formation of free nation states.
End of 18th century
 Freedom of colonies of Britain in NA on the basis of self-determination .
 French Revolution.

20th Century

 Steady increase in the number of states and independence

 Disparity in wealth and incomes b/w states.
 First WW leading to Woodrow Wilson’s 14 Points.
 This formed the basis for the Treaty of Versailles, which led to the creation of the
league of nations, PCIJ etc
 The US did not ratify the treaty and thus was not a member of the US
 Adolf Hitler’s rise to power in Germany and Italy’s and Germany’s withdrawal
from the treaty and thereby the league. This brought out the weakness of the LON
and led to their ultimate failure post WW 2.
 PCIJ moved to Geneva
 After the end of the WW2 Un Charter came in force on 24th October 1945.
 18th April 1946 was the last session of LoN assembly and the same along with
PCIJ was dissolved
 It had objectives like maintaining of friendly relations between states and
maintenance of international peace
 There were several important declarations which essentially called for the
establishment of an international organ to maintain peace –
1. 1941- Atlantic Charter- precursor to the UN. Not a treaty but an affirmation.
2. 1942- UN Declaration
 3. 1943- London Committee- ICJ to replace PCIJ and should have advisory
jurisdiction as well
4. 1944- Bretton Woods- established WB and IMF
5. 1945-San Francisco Convention-signing of UNC
About the UNC
 Use of the word “charter” instead of “covenant” to reflect the constitutional nature
of the UNC
 The preamble establishes the common aims as well as the manner to achieve the
same.
 Use of words “WE THE PEOPLES OF THE UNITED NATIONS”- common
commitment. 4 primary obligations-
1. to save succeeding generations from the scourge of war, which twice
in our lifetime has brought untold sorrow to mankind, and
2. to reaffirm faith in fundamental human rights, in the dignity and worth
of the human person, in the equal rights of men and women and of
nations large and small, and
3. to establish conditions under which justice and respect for the
obligations arising from treaties and other sources of international law
can be maintained, and
4. to promote social progress and better standards of life in larger
freedom (distinguishes itself from the LON which was more of a
peace-keeping body v. UN which had a more development-oriented
mandate)
 4 means to achieve the same-
1. practice tolerance and live together in peace with one another as good
neighbors, and
2. to unite our strength to maintain international peace and security, and
3. to ensure, by the acceptance of principles and the institution of
methods, that armed force shall not be used, save in the common
interest, and
4. to employ international machinery for the promotion of the economic
and social advancement of all peoples,
 the Objectives of the UN are laid down in Article 1-
 1. To maintain international peace and security, and to that end: to take
effective collective measures for the prevention and removal of threats to
the peace, and for the suppression of acts of aggression or other breaches
of the peace, and to bring about by peaceful means, and in conformity with
the principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the
peace; 2. To develop friendly relations among nations based on respect
for the principle of equal rights and self-determination of peoples, and
to take other appropriate measures to strengthen universal peace;
3. To achieve international cooperation in solving international
problems of an economic, social, cultural, or humanitarian character,
and in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language,
or religion; and
4. To be a center for harmonizing the actions of nations in the
attainment of these common ends.
 Highlights of the UNC (some basic principle)
1. Collective security - An aggressor against any one state is considered an
aggressor against all other states, which act together to repel the aggressor.
Laid down in Chapter 7
2. Arrangement of a clearly defined power structure- Clearly defined organs
with specialized roles, along with rights of states in these organs and hierarchy
amongst organs.
3. Detailed reference to HRs- An effect of the revival of the natural law idea in
1945, rights of the individuals are established and protected under the UNC.
This is to ensure that a State is not given the unbridled power to further its
interests at the costs of individuals (like war).
4. Co-operative model established not just to preserve peace but to address
economic and social problems
 Some important articles-
Q. Can UN have an army?
1. Article 43-
 1. All Members of the United Nations, in order to contribute to the
maintenance of international peace and security, undertake to make available
to the Security Council, on its call and in accordance with a special
agreement or agreements, armed forces, assistance, and facilities, including
rights of passage, necessary for the purpose of maintaining international
peace and security.
2. Such agreement or agreements shall govern the numbers and types of
forces, their degree of readiness and general location, and the nature of the
facilities and assistance to be provided.
3. The agreement or agreements shall be negotiated as soon as possible on the
initiative of the Security Council. They shall be concluded between the
Security Council and Members or between the Security Council and groups of
Members and shall be subject to ratification by the signatory states in
accordance with their respective constitutional processes.
Basically, Art. 43 is a promise on part of states to provide armed forces to the
UN for maintenance of international peace and security via agreements with
the UNSC to this effect.
2. Article 45
In order to enable the United Nations to take urgent military measures,
Members shall hold immediately available national air-force contingents for
combined international enforcement action. The strength and degree of
readiness of these contingents and plans for their combined action shall be
determined, within the limits laid down in the special agreement or
agreements referred to in Article 43, by the Security Council with the
assistance of the Military Staff Committee
Requirement of members to contribute air forces for combined international
enforcement action via agreement with UNSC and supervised by the Military
Staff Committee (MSC).
3. Article 47
1. There shall be established a Military Staff Committee to advise and assist
the Security Council on all questions relating to the Security Council's
military requirements for the maintenance of international peace and
security, the employment and command of forces placed at its disposal,
the regulation of armaments, and possible disarmament.
 2. The Military Staff Committee shall consist of the Chiefs of Staff of the
permanent members of the Security Council or their representatives. Any
Member of the United Nations not permanently represented on the
Committee shall be invited by the Committee to be associated with it when
the efficient discharge of the Committee's responsibilities requires the
participation of that Member in its work.
3. The Military Staff Committee shall be responsible under the Security
Council for the strategic direction of any armed forces placed at the disposal
of the Security Council. Questions relating to the command of such forces
shall be worked out subsequently.
4. The Military Staff Committee, with the authorization of the Security Council
and after consultation with appropriate regional agencies, may establish
regional subcommittees.
MSC to consist the Chiefs of Staff of the permanent members of the Security Council.
Duty is to advise and assist UNSC on all military requirements for peace-keeping.
4. Peace-keeping forces- Not to be confused with the armed forces provided
under Article 43-47. Peacekeeping Forces were established as a subsidiary
organ of the UN using UNGA’s powers under Art. 22 (The General Assembly
may establish such subsidiary organs as it deems necessary for the
performance of its function) and UNSC’s power under Art. 29 (The Security
Council may establish such subsidiary organs as it deems necessary for the
performance of its functions.).
Q. Who can seek advisory opinion?
1. Article 96-
1. The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question
2. Other organs of the United Nations and specialized agencies, which may
at any time be so authorized by the General Assembly, may also request
advisory opinions of the Court on legal questions arising within the scope
of their activities.
Cases which have interpreted this power-
1. Advisory opinion on Nuclear Weapons- established UNGA’s power to ask for
advisory opinion but not WHO as th question was out of its sphere of activities.
 2. Only one SC advisory opinion- Legal Consequences For States Of The Continued
Presence Of South Africa In Namibia (South-West Africa) Notwithstanding
Security Council Resolution 276 (1970)

21st Century

 Present century has seen greater impetus to the development of international law
 It has been growing due to growing interdependence b/w states
 Growth of multilateral treaties and the use of arbitration to settle disputes
 ICJ and the PCIJ have contributed greatly to the development of IL
 Work of codification is still going on.

NATURE OF IL

1. SS Lotus
 Established IL to be permissive rather than prohibitory- what is not expressly prohibited
is permitted
 Thus, states are permitted to do anything as long as its not expressly barred- as a
consequence. ICJ ruled in favour of Turkey and allowed to assume jurisdiction over
French nationals since it was not prohibited from doing so
 This emanates from the states sovereign supremacy to act in its independent capacity
 However, currently such an idea is not very well-accepted as IL is not shifting in a more
prohibitory direction .
2. IS IL law?
The main criticisms IL receives against it being law is that
a. It has no superior legal authority to enforce it in case of breach
b. It is voluntary- depends on will

Point (a) is countered easily as this line of criticism draws from comparing IL to municipal law, which
is inherently flawed. IL and domestic law are independent and operate in different spheres on
different subjects. It is illogical to project requirements of domestic law on IL. Thus, such a criticism is
countered by adopting a more international oriented definition of law and expanding our idea of
“law” beyond domestic.

Moreover, physical enforcement is not a necessary characteristic of law (our ‘utopian’ examples).
And we also acknowledge that, even in domestic cases, where the state is one of the parties, we
cannot meaningfully speak of physical enforcement. Additionally, point (b) is countered easily by
looking at the kind of sanctions that maybe and are enforced by states upon their counter-parts
breaking IL (US-Iran sanctions; US-China trade war). Moreover, there are mechanism by which IOs
may do so as wel (WTO can enforce tariffs and trade sanctions; ICJ’s judgements are legally binding;
UN may utilize peace-keeping forces).

Thus, To preserve their entitlements (sovereignty, power to trade etc) entitlement, the states in the
system collectively will allow certain actions to be taken against any given state which violates IL.
MODULE 4- SUBJECTS OF IL

Being a subject of IL would bring with it certain rights and duties-

1. Capacity to bring claims to vindicate rights granted by IL

2. Be imposed with obligations under IL
3. Power to conclude international agreements with other subjects of IL, not in context
of national law.
4. Enjoy immunities under IL

Not every actor in IL enjoys legal personality. Legal personality maybe of two types-

1. Original- This only consists of states who were the actors bestowed with international
personality from the very beginning
2. Derived- Other state-formed entities who have received international personality
because they have been granted the same by states.

International legal personality is a SLIDING SCALE- the measure of rights and obligation
differ on various factors.

I. Inter-governmental organizations

ICJ determines the law on international legal personality of international organizations in

its advisory opinion in the case of Reparation for Injuries Suffered in the Service of
the United Nations (1949). This case established three broad ideas-

1. UN has international legal personality

2. The theory of implied power
3. Theory of functional protection

Facts of the case- UN had appointed mediator Count Folke Bernadotte in Palestine to
resolve the conflict between the Arabs and the Jews. French national Andres Serot was
also appointed as a UN observer. On 17th September, both these members were
assassinated by Israeli militant group called Stern. UN wanted Israel to be held liable for
these deaths, injuries suffered and provide reparations for the same. UN GA referred the
matter to the ICJ with 2 questions-

(i) Whether the United Nations had the capacity to bring an international claim
against the State responsible with a view to obtaining reparation for damage
caused to the Organization and to the victim.
(ii) Whether the United Nations had the capacity to bring an international claim
against a non-member State?
(iii) If both questions were answered in the affirmative, it was further asked in what
manner the action taken by the United Nations could be reconciled with such
rights as might be possessed by the State of which the victim was a national.

A1. To determine locus standi of UN and as a consequence, its legal personality, the UN
Charter is to be examined.

Article 104 of the Charter establishes that- “The Organization shall enjoy in the territory
of each of its Members such legal capacity as may be necessary for the exercise of its
functions and the fulfilment of its purposes”

Thus, while there is no express legal personality, there are implied powers granted to
effectively allow for exercise of the powers of the UN. This indicates that the UN has
been conferred with international legal personality using the theory of implied powers.
Sort of necessary for it to function.

Additionally, what remains is whether UN can claim for injuries to its members. The right
to claim reparations by a State on behalf of its nationals is an exercise of diplomatic
protection in its behalf. The link for such a claim is that of nationality. What is to be
assessed is whether service is a sufficient link to establish such a claim by the UN on
behalf of its representatives or members. Here, the theory of functional protection comes
into play. Just like a State may extend its protection to its nationals, the UN may do so
with its workers to effectively protect them in case of adversity.

A 2. The ICJ established the UN to possess objective legal personality. Thus, such
personality was a universal mandate and therefore could be extended to claim against
non-member states as well. Thus, though such personality is derived from the UN
Charter, the universal nature of the Charter makes the UN a universal subject of IL just
like any other state and not in its capacity as a “super-state”.

A 3. The ICJ left this up to the states to resolve.

Ultimately, UNGA demanded for satisfaction, i.e. a public apology from Israel, Israel did
so along with reparations.
 Another important case which established the legal personality of IO is the Nuclear
Weapons Advisory Opinion.

Brief facts- NGOs put pressure on the UN to prohibit the use of Nuclear Weapons in IL.
WHO passed a resolution seeking ICJ’s advisory opinion. WHO passed a resolution
seeking advisory opinion pursuant to Article 96 of UN Charter.

In 1993, WHO brought this question asking for the legality of nuclear weapons in view of
environmental and heath obligations.

On December 15, 1994, UNGA sought an advisory opinion on whether use of Nuclear
Weapons was permissible under IL?

Ratio- In 1996, ICJ came forward with 2 Advisory Opinions.

 It denied the opinion sought by WHO the case of the WHO dealt with the legality
of the use of nuclear weapons in war like situations and not something like the
health effects of the weapons.
 The rule of specialization- The WHO being a specialised body created
specifically for the protection of health, could not have brought in such a question
on the use of force. Thus, WHO is a specialised body and the key is to bring
questions only to the matters that are related to its functions.
 This is further supported by the 1946 Convention on Privileges and Immunities of
UN Members, which establishes that specialized agencies to be separate legal
entities.
 ICJ accepted the UNGA’s question on this matter as it was within the UN’s
domain.

Conclusion: What is the nature of the Legal Personality- ILP of International

Organizations would imply a right to bring international claims. However this does not mean
that the UN can sue a state for non compliance (due to the restriction under art. 55).
International organizations however have more of a ‘functional legal personality’. This would
imply that due to the scope of the function of the UN, they can bring in claims.

II. States
 The ILC Draft Declaration on the Rights and Duties of the State puts forward the basic
rights and obligations of a state by virtue of its international legal personality. These
principles are embodied within the UNC as well.

Membership to the UN is governed by Chapter 2 of the UNC.

Article 3 under the same establishes the “The original Members of the United Nations
shall be the states which, having participated in the United Nations Conference on
International Organization at San Francisco, or having previously signed the
Declaration by United Nations of January 1,1942, sign the present Charter and ratify it
in accordance with Article 110” . Thus, original members only have to ratify the UNC
and not undertake any additional obligation.

The admission of non-original members is governed by Article 4, which reads –

“1. Membership in the United Nations is open to all other peace-loving states which
accept the obligations contained in the present Charter and, in the judgment of the
Organization, are able and willing to carry out these obligations.

2. The admission of any such state to membership in the United Nations will be effected
by a decision of the General Assembly upon the recommendation of the Security
Council.”

Thus, the membership to UNC creates an irrebuttable presumption of the statehood of an

entity.

CRITERIA TO DETERMINE STATEHOOD

The relationship in this area between factual and legal criteria is a crucial shifting one.
Whether the birth of a new state is primarily a question of fact or law and how the interaction
between the criteria of effectiveness and other relevant legal principles may be reconciled are
questions of considerable complexity and significance.

Montevideo Convention on the Rights and Duties of States enacted in 1934 is one of the
primary international works which provides for a comprehensive criterion to determine
statehood. This convention was even more important in the time it was enacted due to
multiple nations receiving independence as a result of a serial breakdown of colonies across
Asia and Africa. This was closely followed by the dissolution of the Soviet Union in 1931.
Article 1 of the Montevideo Convention - The state as a person of international law should
possess the following qualifications:

a. a permanent population;

b a defined territory;
.

c. government; and

d capacity to enter into relations with the other states.

.

Such provisions are neither exhaustive nor absolute. As will be seen further, other factors
may be relevant, including self-determination and recognition. What is clear, however, is that
the relevant framework revolves essentially around territorial effectiveness.

As per CIL, the Principle of Effectiveness needs to be satisfied in order for an entity to be
recognized as a State. The entity needs to be effective at a certain place over a certain
population to be recognized as a State.

Permanent population is a natural requirement. There is no quantitative limit for population,

as is evident from the population of countries like Nauru (13,649) and Tuvalu (11,192).
Neither does international law set any requirements about the nature of the population.
However, the population must be permanent, it cannot be like that of a nomadic tribe which is
constantly shifting.

In this regard, the requirement of a permanent population does not relate to the nationality of
a population. But while nationality is not an express requirement, the existence of the same is
a strong indication of permanency of a population. It is important to understand that
nationality depends on statehood and not the reverse: that is, a State is able to give a certain
nationality to a person, due to being a State.

AT this juncture, it is also important to distinguish between citizenship and nationality.

Citizenship is the relationship of a sovereign with subject. Nationality is the relationship of a
state with an individual.
IL gives states complete discretion to confer nationality subject to very few basic limitations,
such as the requirement to not discriminate while doing the same etc.

Defined territory- territory refers to surface, sub-stratum etc. What is imperative is the
ability of the State to exercise effective control over a defined territory. The state must have
unlimited powers within its jurisdiction.

Some basics-

a. Territory maybe fragmented, need not be continuous (like a group of islands which is
seen in the case of the Philippines, Seychelles etc.)
b. Territory is not contingent on size (can range from 0.2 square miles in the case of the
Vatican to 6 million square miles of Russia)
c. Boundaries are not required to be well-defined, no rule that they have to be
undisputed or unambiguously established. Israel for example, was admitted to the
United Nations on 11 May 1949, despite its ongoing territorial disputes with the
(predominantly) Arab States.

When Jessup, the representative of the United States to the United Nations argued for
Israel’s admission, he discussed the requirement of territory in the following manner:
“One does not find in the general classic treatment of this subject any insistence that
the territory of a State must be exactly fixed by definite frontiers (…) The formulae in
the classic treatises somewhat vary, (…) but both reason and history demonstrate that
the concept of territory does not necessarily include precise delamination of the
boundaries of that territory. The reason for the rule that one of the necessary attributes
of a State is that it shall possess territory is that one cannot contemplate a State as a
kind of disembodied spirit (…) [T]here must be some portion of the earth‟s surface
which its people inhabit and over which its Government exercises authority. No one
can deny that the State of Israel responds to this requirement (…)”

Government- The requirement of a Government is actually one for an effective

government.

However, IL does not prescribe for any particular form of government, it only requires for a
public authority (political organ) which exercises legitimate authority to control the State. For
example-
 1. ln 1920, the Council of the League of Nations set up a Committee of Jurists to
give its opinion on the dispute between Finland and Sweden concerning the status
of the Aland Islands, situated in the Baltic Sea between the two countries. After
Finnish independence in December 1917, the Islands had continued to belong to
Finland. The population of the Islands, however, was overwhelmingly Swedish
speaking and wanted to become part of Sweden
In order to resolve the same, the Comm looked into whether Finland itself had
attained the status of statehood. It found that the State of Finland, which since
1899 was in fact treated by the Russian Government as an ordinary province, had
not and also never claimed to have an independent legal existence in external
affairs and was indissolubly bound to Russia. Thus, in essence, the Commission of
Jurists was of the opinion th.at the legal status of Finland was unclear until the
new government was able to effectively exert its authority over the territory.
2. The importance of effective authority is further evidenced in the Island of
Palmas case. The arbiter, Max Huber, noted that while international law does
recognize that States have exclusive jurisdiction on their territory, it does not
dictate that States are entirely free in their conduct on their territory. Huber notes
that the recognition of the right to exercise authority also implies that States are
held to respect and effectively protect the rights of other States on their territory.
This obligation can only be met if a State is truly capable of exercising effective
authority on its territory.
3. Similarly, Palestine also faces the same question.

Loss of control by pre-existent states-

The existence of statehood of a newly formed nation differs from a State which is already
recognized as so but has currently lost control. Since IL favours international order and
stability, general practice seems to be to recognize such countries as States. This is evinced
by what happened in 1960 in the Democratic Republic of Congo, frequently called the
“Congo crisis”. This period was characterized by political upheaval and conflict in the
country which started right after Congo got independence from Belgium. But since it had
already received independence and was recognized as a state, this did not affect its statehood.

Not a very strictly followed criteria-

In State practice the application of the principle of effectiveness seems to be considerably less
strict.

1. For instance, Bosnia-Herzegovina was recognized by the international community as

a State and was authorized to join the United Nations during a period that large parts
of its territory were not under effective control of the government. At that time, even
the president had admitted that Bosnia-Herzegovina independence was not
enforceable without foreign support.
2. Similarly, during the process of decolonization, numerous entities achieved statehood
and were admitted to the UN, while their governments lacked effective authority over
the territory.
3. Similarly, when Guinea-Bissau was admitted to the United Nations on 17 September
1974, the requirement of effective authority was not very strictly enforced. Guinea-
Bissau was recognized as a State by a large portion of the international community,
even though the new government lacked control over the majority of the population
and the most important cities

Issue of protectorates

The CIJ in its 1952 decision of Case Concerning Rights of National in Morocco had to
determine statehood of a protected state. In a limited contextual analysis the court discussed
ILP of protected state

Facts- France and Morocco had an agreement whereby France had the right to introduce any
kind of agreement on behalf of Morocco and bring legislative reforms in the former. This was
followed by the Treaty of Fez as per which all international relations of Morocco were to be
handled by France without the permission of the Sultan. Further France had to send military
assistance to Morocco if it needed the same.

Issue- Whether Morocco is a sovereign state?

ICJ- It was observed by the court that Morocco as the protectorate of France had ILP. The
entering into the treaty with France had no bearing on their status as ILP as the Sultan of
Morocco was recognised by other countries as the leader of Morocco as an independent state.

Other factors to determine statehood

A. Recognition of states
Recognition is a Recognition is a method of accepting certain factual situations and endowing
them with legal significance. It is very often based on political considerations. It is of two
types
 Declaratory
 Constructive
1. Declaratory
 Recognition is only an acknowledgment of fact. It becomes immaterial once the
conditions of statehood have been fulfilled. Thus, statehood only depends on the
objective criteria.
 Application of this view is seen in-
o Article 3 of the Montevideo conventions state that political existence of the
state is distinct from recognition by other states.
o Article 6 of Montevideo Convention- Recognition of a state does not affect its
legal personality
 However, there is a flaw in this theory due to the fact that other states enter into
contract with states it recognises
2. Constructive: Importance was given to recognition in the 19 th Century, with the
development of the idea of positivism.
 As per the idea, state cannot have rights and duties until it it recognized as so
 However, no criteria were set down regarding how many states have to recognise.
 This idea is flawed for the reason that states receive these rights and obligations
upon there formation. This theory is unable to explain this.

A reconciled view between the two theories-

While the declaratory view is what has been prevalent in statutes and decisions of the
ICJ, the constitutive view seems to find more acceptance in the practice of States,
especially in international documents. Thus, Foreign Policy seems to recognize the
highly positivist constitutive view.
A combination of the two theories was put forward by Lauterpacht- Once the State
acquires the criteria of statehood, there should be a legal duty on other states.

Q. is there a legal duty to recognize?

NO.
 Q. Is there a legal duty to not recognize under certain circumstances?
YES. handled in the next section.

More recognition, less focus on objective criteria-

There is also an integral relationship between recognition and the criteria for
statehood in the sense that the more overwhelming the scale of international
recognition is in any given situation, the less may be demanded in terms of the
objective demonstration of adherence to the criteria.

Application of this requirement-

1. Post disintegration of USSR, European States established the Declaration on the

Guidelines on the Recognition of New States, 1961, as per which a state would only
be recognized as so if it met certain criteria. This included respecting the need to
respect the rule of law, democracy and human rights; accepting cultural minorities;
inviolability of frontiers etc. It also expressly established that the Committee
established for this purpose would not recognize states that were formed as a result of
aggression.
2. Morocco

Article 4 wrt Doctrine of Effectiveness

Article 4 reads-

“1. Membership in the United Nations is open to all other peace-loving states which
accept the obligations contained in the present Charter and, in the judgment of the
Organization, are able and willing to carry out these obligations.

2. The admission of any such state to membership in the United Nations will be effected
by a decision of the General Assembly upon the recommendation of the Security
Council.”

The criteria thus established to give membership is-

1. Peace-loving nation
 2. Ability to comply with UN Charter
3. Ability to comply with judgements arising out of Charter

History of Article 4

a. 1945-55

While receiving applications, due to the vetoes issued at the Security Council by the
permanent members, it was decided that instead of individual applications, club applications
are to be considered under art. 4.

In 1955, it was decided that the UNSC would accept applications, and would then refer to the
UNGA as en-block applications (in the form of resolutions) which would then be voted upon.
This was in furtherance of the objective of the UN to attain universal membership.

b. 1955-1980

There were a huge number of applications, primarily due to the arrival of new ‘decolonized
states’ due to the Declaration of Friendly Relations (RES- 1514). Further, due to the new
‘club applications’ format, most of the applications were accepted by the UN.

 Procedure for recognition under various UN bodies.

a. UNSC- Rules 58, 59 and 60

The applications are first required to be given to the Secretary General. They would then give
a declaration which has conditions for induction into the UN. The declaration has to be
unconditionally accepted by the states without any reservations. The application is then
required to be voted on by the UNSC and referred to the UNGA.

b. UNGA- Rules 135-138

The proceedings here are similar to that of the UNSC. However, under R. 137, if the SC
delays an application, the applicant can ask the UNSC itself to fully deliberate and decide on
the application.

 Recognition of observer states (Art. 57m 63 and 70 of the UN Charter)- These are
states which are given some rights to participate in the UN system without any voting
rights. After decolonization, the newly emergent states were given observer status.
Observer status is often considered as partial statehood.
Whether micronations are States and should be therefore allowed membership?

This question arises in light of the Doctrine of Effectiveness due to the unique features of
micronations, primarily their high dependence on other states for survival. In this regard, the
concept of “Associated membership” was brought before the UNGA for such nations. A
Committee was established by the UNGA to decide the same, which established that there
was only one form of membership to the UN and that was the manner prescribed under the
UNC.

In order to consider “associated membership”, there would have to be an amendment to the

UNC.

Can a state make a reservation for declaration under Article 4?

VCLT establishes what reservations are permissible under Articles 19 to 23. When an
application for membership to the UN is made, a declaration is required to be given by the
State to the effect that it will comply with the UNC.

Generally, it is an opinion that in light of such a declaration and the nature of the UNC there
cannot be a reservation made to Art. 4 which forms the core membership process for the UN.

B. Doctrine of non-recognition

At times, states which satisfy all 4 criteria fail to be recognized as states while those entities
do not satisfy the same are still recognized. Thus, there exists a paradox wrt statehood.

This is because the legitimacy of statehood is often influenced by its origin. Thus, if an entity
is established by

a. Use of force or
b. Breach of right of self-determination,

It is not recognized as a state. This is essentially the Doctrine of non-recognition, based on

the principle that anything that has been done illegally cannot be a source of a legal right.
Thus, legality of the origin of state has to be taken into account. Application of this doctrine
is seen in-

1. South Africa
  South Africa granted independence to its Bantustans. However, these provinces
were still funded by SA.
 More importantly, these entities were granted independence in order to further the
policy of apartheid- a large portion of the black population was forcibly
transferred to these areas and then alienated.
 Both the Organisation of African Unity and the United Nations declared such
'independence' invalid and called upon all states not to recognise the new entities.
 Even though the entities had satisfied the formal requirements of statehood, they
were granted the same in order to pursue an illegal policy, which cannot be
sustained.
2. Manchuria

 In the 1930s Japan attacked Manchuria in China and renamed it as Manchuko

 China approached the LoN
 UN representation Stinson made a statement which then came to be known as the
Stinson doctrine
 He essentially stated that acquisition of territory by illegal invasion would not be
recognised by the USA
 In 1932 LoN came up with a solution and established a committee who went to
Manchuko to look at its status
 They concluded Manchuko was not independent and thus could not be considered
a separate state. This was on two grounds- First, that it acquired the state by
unlawful annexation. Second, that Manchuko was a puppet state of Japan and did
not really exercise effective control.
3. Namibia Advisory Opinion [Legal Consequences For States Of The Continued
Presence Of South Africa In Namibia (South-West Africa) Notwithstanding Security
Council Reso1,Ution 276 (1970)]
Facts- After WW I, Germany had to surrender its overseas colonies in accordance
with the Mandate System established by the LON. The system required Germany to
surrender the colony to the LON, who’s administration would then be supervised by a
“Mandator”. South-West Africa was one such colony, under the supervision of South
Africa.
After the dissolution of the LON in 1946, SA continued to administer SW Africa,
even though the latter was not placed under the Trusteeship System provided by the
 UNC. This occupation was established as illegal by both the ONGA and the SC, yet
SA did not cease its control.
ICJ- Since all the SC ad UNGA resolutions were binding on member-states, they
were under an obligation to refrain from recognizing SA as a representative of SW
Africa. It established this duty of non-recognition of a situation maintained in
violation of IL as an obligation erga omnes. What could probably limit the
application of this opinion is that in this case, there was an SC resolution which
mandated states to not recognize SA. This is in light of Article 25 of the UNC which
establishes binding value of UNSC resolutions.
But such an interpretation loses ground in light of the recognition of the Stimpson
Doctrine in the subsequently determined East Timor case.
Namibia exception- Every act of the administrator is illegal, preserving the acts which
are done in the favour of the people, which will be deemed as legal.

4. Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (2004)
ICJ recognized the duty of non-recognition as well as the right of self-determination.

5. East Timor
In the 1991 Case Concerning East Timor (Portugal v. Australia), Australia chose to
recognize East Timor as a part of Indonesia, even though Indonsia had acquired the
region by the use of force.
I n March 1986, an Australian Minister stated that , " It is our understanding that
there is no binding international legal obligation not to recognise the acquisition of
territory that was acquired by force. In international law, the legality of the original
acquisition of territory by a state must be distinguished from subsequent dealings
between third states and the state acquiring new territory. It is the sovereign right of
each state to determine what dealings it will have with states acquiring, by whatever
means, new territory and to determine whether or not to recognise sovereignty over
such a territory.”
Basically, Australia justified its entering into a treaty with Indonesia with respect to
East Timor by saying that it had no obligation to not-recognize Indonesia’s control
over East Timor, it was up to the discretion of a sate to recognize or not.
 To this, Judge Skubiszewski in his individual opinion held that-
“The policy of non-recognition, which goes back to before the First World War,
started to be transformed into an obligation of non-recognition in the thirties.
Through the Stimson doctrine, the United States of America played a pioneering - and
beneficial - role in this development. The rule or, as Sir Hersch Lauterpacht says, the
principle of non-recognition now constitutes part of general international law. The
rule may be said to be at present in the course of possibly reaching a stage when it
would share in the nature of the principle of which it is a corollary, Le., the principle
of the non-use of force.”

6. Article 2(4) of UN Charter

UN Charter by way of Article 2(4) laid down that acquisition of territory with the use
of force would not be recognised
7. Declaration of Friendly relations
In 1970 under the Declaration of Friendly relations it was declared that territories
acquired through use of force will not be recognised
8. Rhodesia
 The day following the Rhodesian declaration of independence, the Security
Council passed a resolution calling upon all states not to accord it recognition and
to refrain from assisting it.
 The Council imposed selective mandatory economic sanctions on Rhodesia and
these were later made comprehensive.

9. Cyprus
 Turkey invading Cyprus not recognised
 The SC adopted resolution 541 in 1983, which deplored the purported secession of
part of Cyprus occupied by Turkey in 1974 and termed the proposed Turkish
Cypriot state 'legally invalid.
C. Self-determination

The evolution of self-determination has affected the necessary standard of effectiveness

to be exercised by the entity (sort of exception to doctrine of effectiveness). Thus,
practice indicates that a lower level of effectiveness, at least in decolonisation situations,
is permissible since origin of state lies in its people’s right of self-determination.
Example

1. Though Bangladesh received independence using India’s military support, it was still
recognized as a state as it was established in line with its people’s right to self-
determination.
2. 2. In the East Timor Case, Portugal that Australia's agreement with Indonesia dealing
with the exploration and exploitation of the continental shelf in the 'Timor Gap'
violated the right of the people of East Timor to self-determination.
While the Court found it did not have jurisdiction in the case, it did recognize that
Territory of East Timor remains a non-self-governing territory and its people has
the right to self-determination.

D. Recognition of Government
1. Tabar Doctrine- Put forward by Carlos Tobar, the Minister of Foreign Relations of
Ecuador, in March 1907, and subsequently adopted into two treaties concluded among
the Central American Republics. It is a doctrine of Non-Recognition of Government
as per which the concerned states undertook not to recognize any other government in
Central America which had come into power by revolutionary means ‘so long as the
freely elected representatives of the people thereof have not constitutionally
reorganized the country’

This would imply that they would recognize states created by revolutionary wars,
provided they achieve a constitutional regime.

2. Estrada Doctrine- The doctrine that recognition of a government should be based on

its de facto existence, rather than on its legitimacy.
It is named after Don Genero Estrada, the Mexican Secretary of Foreign Affairs who
in 1930 ordered that Mexican diplomats should issue no declarations that amounted to
a grant of recognition: he felt that this was an insulting practice and offended against
the sovereignty of other nations. In 1980 the UK, USA, and many other states adopted
the Estrada doctrine.
3. Tinoko Concession Arbitration Award (Great Britain v. Costa Rica 1924)
Facts- The Tinoco regime that had seized power in Costa Rica by coup was not
recognized by Great Britain and the United States. When the regime was removed, the
new government nullified all Tinoco’c contract including an oil concession to a
 British company. The claim of Great Britain (P) was that the contract could not be
repudiated because the Tinoco government was the only government in existence at
the time of the contract was signed. This view was not shared by Costa Rica (D) who
claimed that Great Britain (P) was estopped from enforcing the contract by its non-
recognition of the Tinoco regime. The matter was sent for arbitration.
Issue- Does a government need to conform to a previous constitution if the
government had established itself and maintained a peaceful de facto administration
and does non-recognition of the government by other government destroy the de facto
status of the government?
Held- No. A government need not conform to a previous constitution if the
government had established itself and maintained a peaceful de facto administration
and non-recognition of the government by other government does not destroy the de
facto status of the government. The non-recognition of the Tinoco regime by Great
Britain did not dispute the de facto existence of that regime. There is no estoppel since
the successor government had not been led by British non-recognition to change its
position.
Estoppel was not found by the arbitrator. The evidence of the de facto status of the
Tinoco’s regime was not outweighed by the evidence of non-recognition. This implies
that valid contracts may be formed by unrecognized government.
III. Sui Generis entities

 Holy See Vatican etc do not have the complete characteristics of a state and yet
are considered to be to be an ILP
 Earlier the HS did not have territory and then Vatican City was given to it by
states under Lageran Treaty
 Holy see is a party to the VCLT and other conventions
 Vatican does not have a fixed population
 Only when you are in the service of the pope are you considered to be a citizen so
no determinate population
 HS issues diplomatic and counsellor passports while VC issues normal passports

IV. Non-member observer states

 Recognition of observer states (Art. 57m 63 and 70 of the UN Charter)- These are
states which are given some rights to participate in the UN system without any voting
 rights. After decolonization, the newly emergent states were given observer status.
Observer status is often considered as partial statehood.

 Thus, observer States can participate in IOs without any voting rights. While this was
a concept expressly recognized by the LON, the UNC does not. The continuation of
such membership is through the practice of the UN as evinced in variety of its wings.

1. Article 31 and 32 of UNC-

Article 31- Any Member of the United Nations which is not a member of the
Security Council may participate, without vote, in the discussion of any question
brought before the Security Council whenever the latter considers that the
interests of that Member are specially affected.
Article 32- Any Member of the United Nations which is not a member of the
Security Council or any state which is not a Member of the United Nations, if it is
a party to a dispute under consideration by the Security Council, shall be invited
to participate, without vote, in the discussion relating to the dispute. The Security
Council shall lay down such conditions as it deems just for the participation, of a
state which is not a Member of the United Nations.
Basically, non-members may participate in UNSC if its interests are being
affected in the latter.
2. Article 69-
“The Economic and Social Council shall invite any Member of the United Nations
to participate, without vote, in its deliberations on any matter of particular
concern to that Member”
3. Article 57
1. The various specialized agencies, established by intergovernmental agreement
and having wide international responsibilities, as defined in their basic
instruments, in economic, social, cultural, educational, health, and related fields,
shall be brought into relationship with the United Nations in accordance with the
provisions of Article 63.
2. Such agencies thus brought into relationship with the United Nations are
hereinafter referred to as specialized agencies.
4. Article 70
The Economic and Social Council may make arrangements for representatives of
the specialized agencies to participate, without vote, in its deliberations and in
 those of the commissions established by it, and for its representatives to
participate in the deliberations of the specialized agencies.
5. Article 71
6. Article 102
1. Every treaty and every international agreement entered into by any Member of
the United Nations after the present Charter comes into force shall as soon as
possible be registered with the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been
registered in accordance with the provisions of paragraph 1 of this Article may
invoke that treaty or agreement before any organ of the United Nations.
Implication – ?

RANDOM- RESERVATION

 International law recognises the rights of the states to become parties to treaties
without accepting all its provisions
 This is done by the reservations to treaties and their effect and validity is seen under
articles 19 – 23 of the VCLT
 It allows a state to become a party to a treaty which it otherwise may not have been
able to become a party to
 Many states make reservations

Article 2(1)(a) of the Vienna Conventions

This defines reservations as a unilateral statement however phrased by a state, while signing
ratifying accepting approving or acceding to a treaty where it purports to modify or exclude
the legal effect of certain provisions of that treaty in its application to the state

Essentials

1. Unilateral statement
2. Must be specific and not general
3. Must be made to exclude or modify certain provisions of the treaty in their
application to the state
4. Reservation can be made while signing accepting ratifying or acceding
5. Name of the reservation does not matter (may call it a declaration etc)
 6. In case of multilateral treaties, if State A makes a reservation and all states accept
the reservation of state A then it becomes a party to the treaty.

Article 120 of the Rome Statute

Completely bars reservations.

History of Reservations

The classical regime (adopted in the League of Nations) A rigid regime based on the
unanimous acceptance of the reservations. Only if all the parties agreed to the reservation by
a state then only did the state become a party to the treaty

Pan-American Regime: It was a more liberal approach and resulted in the bilateralisation in
multilateral treaties (Reservations made by a party accepted by the other party by accepting
of notes)

Advisory Opinion of the ICJ on Reservations to the Genocide Convention: Several states
wanted to make reservations to the GC. UNGA approached the ICJ. The questions before the
ICJ were (i) Whether a state could make reservations to a multilateral treaty and be a party
to it even when the reservation is objected to by the other parties (ii) What will be the legal
effect of those reservations on the parties who accept it and on those who reject it. The court
took a Pan-American approach and stated that ifi the reservation has been made and the same
has been objected to only one or two parties then the state can be a party to the treaty
provided that the reservations are compatible to the provisions of the treaty. If a state party
believes that the reservation is against the object and purpose of the treaty then that state can
consider the reserving state as not a party. If a party accepts the reservation then it can
consider the reserving state as a party

Article 19 of VCLT: Valid Reservations

The reservation is not valid when

When the reservation is prohibited by the treaty

When the treaty specifies the reservations that can be made and the same doesn’t include the
reservation in question

The reservation is incompatible with the object and purpose of the treaty
Certain treaties which prohibit all reservations are statue of the ICC (Article 120), many
disarmament treaties etc

Example of a treaty allowing for certain reservations is the UNCLOS where Article 209
provides that states can only make reservations as provided for in the articles

Legal Effects of Reservation

Rule of Reciprocal Effect

For instance there is a treaty b/w A B and C and A makes a reservation to Article 21

It is not bound by Article 21, conversely B and C are not bound by Article 21 vis a vis A

Rule of Relative Effect

B C and D who have not made reservations to Article 21 must continue to respect it vis-à-vis
reach other. Thus, there are bilateral effects in a multilateral treaty

Article 21 of VCLT

VCLT reservations are residual in nature. Thus, if the treaty itself prescribes how reservations
are to be applied, then VLCT would not apply in this regard.

For a reservation established with regard to another party in accordance with Articles 19, 20
and 23 talks about the reciprocal effect (1) para two (relative effect). (the legal effect of
reservation is to be seen from the perspective of all the concerned parties)

Conclusion

The legal effect of reservation is to be seen from the perspective of all parties

State may react to a reservation in one of three ways-

1. Accept (Art. 20)

2. Objects to reservation and refuses to enter into treaty
3. Remains silent- Tacit acceptance. The VLCT general rule is not to accept but to
object to a reservation (Art. 20, para 5). Thus, if a state does not object within 12
months of notification of reservation, it has accepted it.
1. Article 20 of VCLT: Acceptance and objections to reservations

(1) A reservation authorised by a treaty doesn’t require the consent of the other state parties
unless the treaty specifically provides as such
(2) However if it appears from the object and purpose of the treaty that the treaty must be
applied in its entirety between parties then the reservation of one state must be accepted by
all other state parties

 The acceptance of an objectively invalid reservation does not make it legal

 Only one state is needed for accepting the reservation of a reserving state for it to
become a party to the treaty and the reservation producing the desired effect (Article
20(4)(c))
 Reservations are considered to be accepted by another contracting party if said
contracting party has not raised any objection within one year of notifying the
reservation or ratifying the treaty.
 If all other states unanimously object to the reservation then the reserving state will
not become a party to the treaty at all
2. Objection to reservation and thereby the entry into force:
 As per Article 20(4)(b) if one state objects to the reservation made by the reserving
state, then the treaty still comes into force b/w the objecting state and the reserving
state provided no contrary intention is definitely expressed.
 Essentially the treaty will not come into force only if the objecting party expressly
states that it does not want the treaty to come into force b/w itself and the reserving
state on grounds of the reservation.
 For instance if A enters into a treaty with B C and D with a reservation to Article 21,
and if B objects to the reservation and indicates that there will be no treaty between A
and B, then the obligations of B C and D continue and the obligations of A to C and D
also continue

Effect of simple objection: Article 21 (3): When a state objecting a reservation has not
opposed the entry into force the treaty b/w itself and the reserving state, then the provisions to
which the reservations were expressed would not be applicable as b/w the two parties. This is
the reciprocal effect of reservation

Withdrawal of Reservations

Article 22: Withdrawal of reservation

(1) A reservation can be withdrawn at any time and the consent of the state which has
accepted the reservation is not required
(2) Unless the treaty provides, an objection to a reservation can be withdrawn at any time

(3) Unless the treaty otherwise provides, or is agreed (a) withdrawal of reservation becomes
applicable only when the consenting state is given notice of it (b) withdrawal of objection to
a reservation becomes operative only when the party formulating the reservation gets notice
of it

Article 23: Procedure regarding reservations

1. A reservation, an express objection and an express acceptance must be in writing and

communicated to the contracting parties to the treaty
2. If formulated during the signing of the treaty pending ratification then the reservation
must be formally confirmed by the reserving state when expressing its consent to be
bound by the treaty. Reservation is considered to be made on the date of confirmation
3. An express acceptance of, or an objection to, a reservation made previously to
confirmation of the reservation does not itself require confirmation.
4. The withdrawal or reservation or objection must be formulated in writing

Practise of depository

Steps-

1. Reserving or objecting state has to tender the same to the Secretariat, who is the
depository body
2. Secretariat then sends a depository notification to relevant states
 SC receives objections, it does not contain an objection to the entry of force of the treaty
 Does not allow reservations after 12 months deadline
 If the intention of the reserving party is not clear, then it
 If the treaty forbids all reservations then complies with VCLT- As per Article 19 of
VCLT, Sec. Gen. will not accept invalid or barred reservations. This is only when it is
100% clear that its invalid.
 If it appears incompatible, SG invites comments from other states in order to determine
compatibility with object and purpose with the reserving state. It then circulates the
statements received to interested states.
 This gives states an opportunity to withdraw reservation and other states to raise
objections.
 Treaty silent – SG circulates does not comment on legal effect

Article 20(3)

If there is a treaty which is the constituent instrument of an international organisation, unless

the treaty other provides, a reservation requires approval of that organ

Bilateral treaties

When one state makes a reservation, it must be expressly approved by the other state on order
to be valid. Reservations are not generally made in bilateral treaties.

US understanding of termination is different- In the US however the treaty is signed by the

president, which isn’t binding unless the Senate agrees. Thus, they make reservations which
are accepted by the other party by the exchange of notes.

Additional points

The substance of the reservation is important and has to be analysed (Continental Shelf
Arbitration)

Once a statement has been ascertained to be a reservation then the same will be interpreted as
per the rules of treaty interpretation

Q. Whether Art. 2 of ICCPR allows for reservations?

A. Under 19(2)

Q. Whether Art. 2 of The Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment allows for reservations?

A. Looking at Chile’s reservation to the same wherein several countries like Denmark,
Luxembourg etc. objected to it on it being contrary to object and purpose of Convention,
looks like it’s not permissible.

Different types of Reservations

Rationae Mateiae: Modifying the substance of the reservation

Rationae Temporis: Modifying the temporal limits of the reservation

Rationae Loci: Modifying the geographical application of the treaty

Reservations can also be-

1. Procedural
2. Substantial

Latter refers to a reservation wrt submitting to jurisdiction of any other forum. Once such
example is that of optional clauses. Through this, ICJ allows for states to accept its
jurisdiction with reservations made under Article 36 via a declaration which allows a state to
accept compulsory jurisdiction of ICJ.

States may make reservations to such declarations. One instance of the importance of this
feature was in seen in the Jadhav case.

Post the Jadhav case, Pakistan amended its declaration

MODULE 2- SOURCES OF IL

SOURCES OF INTERNATIONAL LAW

 The sources of international law are often confused with regards to what causes or
factors led to the growth of international law
 Oppenheim tried to state the differences between the two conceptions by using the
analogy of a spring or a well
 He stated that in case of a spring the source of the water is say a hole in the ground
which lead to the gushing out of the water and the same obviously could not be
equated to the water flowing in a stream
 The rules of international law do not arise from a point in the ground as spring water
does but from facts in the historical development of the community. These facts from
which rules of international law arise from are called sources of international law
 (There used to be a debate about whether the term custom or evidence should be used,
it was decided that the term custom would be used)
 The basis of law of the nations is the common consent of the member states. Thus,
sources of international law are the facts in the historical development of the world
community by the common consent of the family of the nations
 Thus the sources of international law can be divided into two parts (i) where the first
deals with the express consent of the state by way of treaties (ii) while the second
deals with the tacit consent of the state by way of customary international law giving
rise to customary international law

Some important opinion on sources-

1. SS Lotus- IL comes from the will of the states

2. Wimbledon Case (PCIJ)- The Permanent Court noted that 'an international
waterway. . . for the benefit of all nations of the world' had been established.
For an obligation to be imposed by a treaty upon a third state, the express agreement
of that state in writing is required, whereas in the case of benefits granted to third
states, their assent is presumed in the absence of contrary intention. This is because
the general tenor of customary international law has leaned in favour of the validity of
rights granted to third states, but against that of obligations imposed upon them, in the
light of basic principles relating to state sovereignty, equality and non- interference.
3. PCIJ
Role of Charter of United Nations and Statue of International Court of Justice The statute of
the International Court of Justice recognises four main sources of international law which
includes such treaties and custom. The same is enshrined under Article 36 of the Statute of
the International Court of Justice

1. The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a) International conventions whether general or particular, establishing rules expressly
recognised by the states
b) International custom, as evidence of general practise and is accepted as law
c) General principles of law, recognised by civilised nations
d) Subject to the provisions under Article 59, judicial decisions and teachings of highly
qualified publicists
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto.

Hierarchy of sources- does it exist?

 First three sources are LAW MAKING sources. The last one under clause (d) is a
subsidiary source.
 ICJ had established that there exists no hierarchy between (a) and (b) in its judgement
in Nicaragua. I the absence of their being custom or treaty on the matter, clause (c) is
considered.
 Practice of the ICJ establishes that the sources flow in their prescribes, logical order-
a,b, c
 Clause (2) comes into play only when parties have expressly consented to the mater
being decided only based on principles of equity and justice.

Shaw on hierarchy-
 Judicial decisions and writings clearly have a subordinate function within the
hierarchy in view of article 38(1), while the role of general principles of law as
a way of complementing custom and treaty law places that category fairly
firmly in third place.
 The question of priority as between custom and treaty law is more complex.
As a general rule, the later in time will have priority. Treaties are usually
 formulated to replace or codify existing custom,201 while treaties in turn may
themselves fall out of use and be replaced by new customary rules. There is a
principle to the effect that a special rule prevails over a general rule (lex
specialis derogat legi generali), so that, for example, treaty rules between
states as lex specialis would have priority as against general rules of
customary law between the same states.

I. International Custom

1. Custom is an older source of international law and is not to be confused with usage
2. It is not a mere usage because those adhering with a custom must feel that they are
obligated to do so
3. Thus international custom arises when there is a clear continuous habit of doing
something which grows up under this aegis of conviction that said actions constitute a
part of international law and are an obligation or a right
4. Thus usage essentially represents the twilight stage of custom
5. The growth of international custom has been slow and even today there could be new
custom which could be accepted as law if the need arises to do so
6. Sometimes even treaties have been repealed due to custom. For instance the Geneva
Conventions of the law of the seas of 1958 was repealed by international custom
which grew during the 70s and finally was codified in the Convention on the law of
the seas of 1982.

I.1. Material fact- state practice

There are a number of points to be considered concerning the nature of a particular
practice by states, including its duration, consistency, repetition and generality.
Some questions which are to be answered while determining this test-
1. How many states are required to establish custom?
A. Doesn’t always require acceptance of all states, this would depend on the nature of an
obligation and the circumference of its application.
For instance, a regional CIL only requires the same to be practiced by the two or more
parties in question. However, a CIL with international application would certainly
require more widespread practice.
 Additionally, a positive obligation would require a lot more state practice to establish
as compared to a negative obligation, which is a lot easier to show.

2. What is the standard to determine acceptance (repetition and consistency)?

A. The basic rule as regards continuity and repetition was laid down in the Asylum case
decided by the International Court of Justice (ICJ) in 1950. The Court declared
that a customary rule must be 'in accordance with a constant and uniform usage
practised by the States in question'.
 The Court, in characterising the nature of a customary rule, held that it had to
constitute the expression of a right appertaining to one state (Colombia) and a duty
incumbent upon another (Peru). However, the Court felt that in the Asylum litigation,
state practices had been so un- certain and contradictory as not to amount to a 'constant
and uniform usage' regarding the unilateral qualification of the offence in question.
 An unsubstantiated claim by a state cannot be accepted because it would amount to
unilateral law-making and compromise a reasonably impartial system of international
law.
 If a proposition meets with a great deal of opposition then it would be an undesirable
fiction to ignore this and talk of an established rule.

3. How long does the practice have to be followed to amount to CIL?

A. As far as the duration is concerned, most countries specify a recognised time-scale for
the acceptance of a practice as a customary rule within their municipal systems. This
can vary from 'time immemorial' in the English common law dating back to 1189, to
figures from thirty or forty years on the Continent.
 In international law there is no rigid time element and it will depend upon the
circumstances of the case and the nature of the usage in question.
 In certain fields, such as air and space law, the rules have developed quickly (Instant
CIL); in others, the process is much slower.
 Instant CIL- For example, the customary law relating to a state's sovereignty over its
airspace developed very quickly in the years immediately before and during the First
World War. Similarly, the principle of non-sovereignty over the space route followed
by artificial satellites came into being soon after the launching of the first sputniks. Bin
 Cheng (space law god) has argued that in such circumstances repetition is not at all
necessary provided the opinio juris could be clearly established. Thus, 'instant'
customary law is possible
 Duration is thus not the most important of the components of state practice. The
essence of custom is to be sought elsewhere.

4. Whose practice is to be looked at?

A. Custom should to some extent mirror the perceptions of the majority of states, since it
is based upon usages which are practised by nations as they express their power and
their hopes and fears.
 But it is inescapable that some states are more influential and powerful than others
and that their activities should be regarded as of greater significance.
 This is reflected in international law so that custom may be created by a few
states, provided those states are intimately connected with the issue at hand,
whether because of their wealth and power or because of their special
relationship with the subject-matter of the practice, as for example maritime
nations and sea law.
 Law cannot be divorced from politics or power and this is one instance of that
proposition.
 Ex- The influence of the United Kingdom, for example, on the development of the
law of the sea and prize law in the nineteenth century when it was at the height of
its power, was predominant. This was both because of its close link to the law of the
sea (since it has a long coast with many neighbours) and its power at the time.
 Similarly, the impact of the Soviet Union (now Russia) and the United States on
space law has been paramount.
 Thus, a regulation regarding the breadth of the territorial sea is unlikely to be
treated as law if the great maritime nations do not agree to or acquiesce in it, no
matter how many landlocked states demand it.

5. Sources of practice- what to look at?

A. Decisions of national courts, diplomatic communications, national legislations,
bilateral agreements, multilateral agreements, statements made by representatives of
the state etc.
 I.2. Opinion juris

Existence of international custom tests

 Article 38(2) of the Statue of the International Court of Justice talks about custom
being a source of International law, as evidence of general practice accepted as law.
 There are two requisites for the existence of an international custom (i) Sufficient
uniform practice (state practise) (ii) the belief that the same is obligatory
 What amounts to state practise and opinio juris depends upon the facts and
circumstances of each case
 State practise under this heading essentially means the practise of the states and
covers every activity of the organs and officials of the state in an international
context. It also includes actions and reactions by international organisations
 An example of custom would be the application of Article 27(3) of the UN Charter
which essentially provides that in a non-procedural matter before the security council
a resolution can be passed only with a qualified majority and with the concurring
votes of all the 5 permanent members. However if one of the P. members abstains
from voting then the resolution will not fail.

1. Paquete Habana Case

Facts- This case referred to the appeals from a US District Court

 In this case there were two fishing vessels (Paquete Habana and Lola) which were
sailing under a Spanish flag which were captured by the US Navy during the US-
Spanish war in 1898.
 They did not have any knowledge of the war
 As per the customs of wartime (which applied to military vessels) , US auctioned off
the vessels for USD 490 and 800.

Question- Whether the USA had a right to seize fishing vessels during war?

Argument- Their release was sought before the US Supreme Court on the basis that such
fishing vessels honestly pursuing their calling cannot be detained by a belligerent nation in a
war. They have immunity and this immunity is derived from customary international law
Held: In order to determine the same, US SC turned to CIL to see if there existed any custom
which permitted such seizure of fishing vessels. The court examined bilateral agreements,
international documents, national foreign court judgements etc. and found there to be an
exception to the general rule of “prizes of war” with respect to fishing vessels. Such vessels
could not be seized as war prizes. Customary international law exists in this case.
The SC laid down the 2 ELEMENT THEORY, wherein they examined the existence of both
state practice (Material element) along with whether such practice was accepted as law
(opinio juris- subjective/psychological emenet).

2. North Sea Continental Shelf Cases

Facts- This was a case that pertained to the delimitation of the continental shelves of
Netherlands, Germany and Denmark
 Denmark and Netherlands argued that the delimitation should take place according to
the principle of equidistance - special circumstances laid down under Article 6 of the
Geneva Conventions on the Continental Shelf .
 Moreover, this principle was mostly used to adjudicate the boundaries for opposite
states. In this case dispute was b/w adjacent states.

 Arguments- N and D argued that although Germany was not a party to it, it was
customary international law and thus binding on Germany for two reasons-
1. Art. 6 was codification of CIL
2. Subsequent practice of states wrt Art. 6 was uniform and therefore it has crystallized
into CIL- It cited around 15 cases which showed that disputes regarding delimitation
of continental shelves were mostly resolved by states according to the equidistant
principle and some were decided unilaterally.
Germany did not wish to be bound by the same as it has a concave boundary which
would put it at a disadvantage if such a method were to be applied.

Question- what was the applicability of the equidistance principle for delimitation of
continental shelf to non-parties to the Convention?
 ICJ- First, it found Art. 6 to not be codification of CIL- The court observed that the
ILC had recommended the incorporation of the equidistant principle with much
hesitancy.
Further it also allowed states to file reservations against it.
 Second, court found it to not have crystallized into CIL. It held that the cases that
were cited did not show sufficient uniform state practise because it constituted
only a miniscule of disputes that probably exist in the world regarding the
delimitation of continental shelves. Thus, practice was nether extensive nor
uniform.
 Further even if the state practise argument were accepted, the states that actually
followed said principle did not feel that they were legally obligated to do so.
Frequency of an act is not enough, it may be done ceremoniously or as protocol
etc. What is important is that states do the same because they consider it to be
legally binding.
 Thus, there did not exist customary international law in this regard. The court
cited the SS lotus case as well.
 What it did hold was that even though there had been a short period between the
enaction of the Convention in 1956 and the dispute in 1969, such a short period
was NOT a bar to the formation of CIL.
Dissent Man Lachs: Opino juris could be presumed from practise in matters where
legal rights and obligations were involved

3. Jurisdictional immunities of the State (Germany v. Italy: Greece intervening)

(2012)

Facts- After the WW2, many victims of the war claimed compensation from
Germany. Germany enacted several laws to facilitate the payment of compensation to
these victims. However, thousands of former Italian military did not fall within these
laws and they could not get compensation in Germany. They brought civil cases
against Germany in Italian Courts to claim compensation. Germany objected to the
proceedings on the basis of jurisdictional immunity before foreign courts. Italian
Courts held that “…jurisdictional immunity is not absolute…” and that “…in cases of
crimes under international law, the jurisdictional immunity of States should be set
aside.”
 Issue- Is jurisdictional immunity available to a State for acts committed by its armed
forces in the conduct of an armed conflict?

Judgement- ICJ found Germany to have jurisdictional immunity. Thus, CIL clearly
established jurisdictional immunity of states in IL.
It found there to be opinion juris but insufficient state practice on whether immunity
could be taken away for certain crimes. Thus, CIL was too nascent on this matter to
successfully establish its existence.

4. SS Lotus case (France v. Turkey)

 In this case there was a French vessel SS Lotus which was on its way to
Constantinople
 However, when it was about to reach the harbour it collided with a Turkish vessel
which sank and resulted in the deaths of 8 Turkish nationals
 After the ship docked at the Turkish harbour criminal proceedings were initiated
against the lieutenant of the ship
 France intervened diplomatically on his behalf and the matter was submitted
before the PCIJ after an agreement between both the parties in Geneva
 France argued that it alone has criminal jurisdiction over a vessel that flies its flag
and that the same was customary international law
 Held: The court looked at the tests of determining customary international law
which were (i) sufficient uniform practise (ii) believing that the same is
obligatory. In this case the court observed that there was no sufficient uniform
state practise in this regard where a state has exercised criminal jurisdiction over a
vessel that flies its flag. It has differed from state to state and from court to court.
Further even if the France’s contention of there being sufficient state practice were
presumed to be true, even then the same would not constitute customary
international law due to the fact that none of the states consider it to be an
obligation to do so

This judgement has been criticised by several scholars of international law on the grounds
that international law seems to permit which it does not forbid
5. Advisory Opinion of the ICJ on the Legality of the Threat or Use of Nuclear
Weapons (1996)

Facts- States that believe that there is a prohibition in international law in the use of
nuclear weapons have showed the existence of customary international law to that
effect
 They essentially referred the constant non-use of nuclear weapons by states since the
year 1945 and stated that states which possessed nuclear weapons believed that they
had a legal obligation to not use them
 Other states obviously asserted that threat or use of nuclear force in certain cases was
valid. They relied on the doctrine and practise of deterrence to further their arguments
 It was argued that states could use such weapons for self – defence where they were
required to protect their vital interests
 They stated that the lack of use since 1945 is because circumstances for their use may
not have arisen

Issue- Whether a prohibition of a threat or a use of nuclear weapons constituted

customary international law ?

 Held: This would qualify as customary international law if there was state practise
and opinio juris with regard to such prohibition.
It was observed that there existed a profound difference in the opinion of states
regarding whether they could use nuclear weapons or not. Thu,s the criterion for
opinio juris could not be fulfilled and thus the prohibition of the use or threat of use of
nuclear weapons was not customary international law

6. Military and Paramilitary Activities in and against Nicaragua (Nic. V. USA

1966)

Facts- In July 1979, the Government of President Somoza was replaced by a government
installed by Frente Sandinista de Liberacion Nacional (FSLN). In April 1981 the United
States stopped its aid to Nicaragua and in September 1981, according to Nicaragua, the
United States “decided to plan and undertake activities directed against Nicaragua”.
Question- Whether the USA had breached its CIL obligation to not intervene in internal
affairs of another state, to not use force against another state and to not violate another
states sovereignty?

Icj- Looked into US’s argument as per which the obligation to desists from “use of
force” had changed. However, found that US’s conduct did Not establish new CIL but
breached existing one. Thus, any inconsistency with original CIL rule does not
automatically establish it to be a new rule of CIL. For this to happened, it must be
supported by sufficient state practice and opinio juris.

A. Persistent objector rule

If a state’s objection to a rule of CIL is persistent and exists from the very inception of the
rule, it is not bound by the same.

Q. What about newly independent states?

A. For example, if the rule arose in 2000 and a state got independent in 2005 and
immediately objected to the rule, would this count? NO. objection must be from inception
of the rule.

Only judgement of the ICJ which even alludes to this rule- Anglo Norwegian Fisheries
Case (Norway v. UK)

Facts- The United Kingdom requested the court to decide if Norway had used a legally
acceptable method in drawing the baseline from which it measured its territorial sea. The
United Kingdom argued that customary international law did not allow the length of a
baseline drawn across a bay to be longer than ten miles. Norway argued that its
delimitation method (Baseline method) was consistent with general principles of
international law.

Question- The Court was asked to decide, amongst others, the validity, under
international law, of the methods used to delimit Norway’s territorial sea/ fisheries zone.
held- ICJ found that the baseline method was not binding on Norway since it had
persistently objected to any attempt to apply the rule to its coast since its inception.

B. Regional CIL-

C.1. Asylum Case (Columbia v. Peru)

Facts- Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of
the crime of military rebellion”. 3 months after the rebellion, Torre fled to the Colombian
Embassy in Lima, Peru. The Colombian Ambassador confirmed that Torre was granted
diplomatic asylum in accordance with Article 2(2) of the Havana Convention on Asylum
of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the
Ambassador also stated Colombia had qualified Torre as a political refugee in accordance
with Article 2 Montevideo Convention on Political Asylum of 1933 (note the term
refugee is not the same as the Refugee Convention of 1951).

Peru refused to accept the unilateral qualification and refused to grant safe passage. It
argued that Columbia cannot unilaterally qualify the offence for the purpose of asylum
under treaty law and international law.

Question- Whether such a qualification exists under CIL?

ICJ- The court held that there was no expressed or implied right of unilateral and
definitive qualification of the State that grants asylum under the Havana Convention or
relevant principles of international law. The treaties under question were not binding on
Peru but court was ready to accept this unilateral qualification if there existed regional
CIL to this effect.

Columbia attempted to do so using the above-mentioned treaties but could not as they had
very little acceptance.

This case is important nevertheless as the ICJ recognized the existence of regional CIL.

C.2. Case Concerning Right of Passage over Indian Territories

1. In this case Portugal alleged that its right of passage over the Indian peninsula was
being hindered by India which was making it extremely difficult to exercise its
sovereignty on the territories which it exercised control or sovereignty
2. The Portuguese had initially gotten only a revenue grant from the then Maratha ruler
in 1779 and after the British came their sovereignty over certain territory was
recognised
3. Held: The court observed that Portugal did have a right of passage over certain
territories in the year 1954 and the same extended to only private and civil persons
 and goods. Thus essentials of exercising sovereignty and there was uniform state
practise in this regard. There was no such right of passage for army officials. This
right was however subjected to the regulation and control of India. The Court
observed that India had exercised such a right lawfully in exercise of its power and
control of such sovereignty due to the fact that there were several disturbances in
created due to overthrow of Portuguese rule in the enclaves. The main point here was
that international law recognises special custom or local custom.

Treaties

 It is one of the modes of express agreement by states

 It concretises develops modifies or creates new norms of international law
 The effect of a treaty in leading to formation of international law depends on the
nature of the treaty concerned
 It can be classified into two types
 Law making treaties – lay down rules of general and specific application
 Treaty contracts – b/w states concerning matters exclusive to the states

Law making treaties

4. These have large number of parties and lay down general norms
5. Brierly defined law making treaties as those which have several parties who state their
understanding of the law, or lay down a rule of future conduct or establish an
international institution
6. They may be of two kinds (i) enunciating universal rules – UN Charter (ii)
enunciating general rules
7. In case of treaties, third party states, that is states who are not parties to the treaty are
obviously not bound by their terms
8. However if a non – party would be considered to be bound to the terms of the treaty if
by its conduct its indicates its intention of being bind by the terms of the treaty
9. In the North Sea Continental Shelf Cases the ICJ had held that the rule of
equidistance which is mentioned under Article 6 of the Geneva Convention on
Continental Shelf was not accepted by Germany in a necessary manifest manner
10. Article 2 para 6 of the UN Charter is an exception to this rule which essentially
states that the UN shall ensure that states who are not parties to the UN Charter act in
 accordance with the principles enshrined under it for the maintenance of international
peace and security
11. Thus a universal treaty binds non – parties as well
12. The VCLT however states that its provisions would be binding upon a non – party
only if the same becomes customary international law

Treaty contracts

13. They are not directly a source of international law

14. However they constitute particular law for the states and are binding on them
15. They fall within the meaning of particular conventions under Article 38(1)(a) of the
Statute of the ICJ
16. They may lead to the formation of rules of international law through the operation of
principle governing the development of these rules
17. A series of treaties laying down a similar rules may lead to the creation of CIL
18. A treaty between a limited number of states may subsequently get generalised with
independent acceptance

Relationship b/w Treaties and custom

North Sea Continental Shelf Cases

Established that treaty can be –

1. Declarative of custom- codification of pre-existent CIL- this would binding on
parties (treaty) and non-parties(CIL)
2. Indicate crystallization of CIL in state nascendi- not binding on non-parties
3. Generate CIL in the future upon widespread acceptance- not binding on non-
parties

Norms in a treaty can be changed by custom, and customary norms can be changed by a
treaty .

What if customs and treaty are complementary?

This would attract the theory of parallel obligations as per which if the same rule has two
sources, one in CIL and one in treaty, there is no hierarchy of their application. This was est.
in Nicaragua wrt use of force.

What if they are conflicting?

Two considerations applied-

1. The one which came later is what prevails subject to principles of jus cogens- lex
posteriori derogate juri priori
2. The specific regime prevails over the non-specific one- lex specialis derogate legem
generalis