TOPIC 1: INTRODUCTION

IS PIL LAW?
Public International Law governs the political and civil relationships between nations. However, there is debate
regarding whether PIL is, in fact, a law.
1. Prof. John Bolton. He says that PIL is not law. He says that it does not govern the conduct of countries. It
merely governs geopolitical relationships and has no legal basis. There is no authority or sovereign-subordinate
relationship in international law. It only caters to the mutual interests of nations such as terrorism and trade.
India’s induction into the WTO is a good example. In 1991, India was under immense pressure from the World
Bank to open up its economy. He looks at the practical aspect of international law.

2. Prof. Austin. He suggests that PIL is a soft law. He argues that PIL has all the requisite features to be
considered a ‘law’. However, he also says that the lack of political superiority and enforceability, it is only a
soft law. He looks at the theoretical aspect of international law.

3. Prof. Frank. He posits that PIL is as good a law as national / domestic laws. International law, he says, is a
true law. This is because of the notion of legitimacy, which entails symbolic validation and the ability to be
ascertained. Countries have mutual interests and obligations towards their respective citizens and they come
together to form an international community out of good faith. The basis for this is morality. This coming
together symbolically validates the existence of international law. Frank posited that capacity to be ascertained
is essential in ensuring International law is thus a result of mutual consensus between nations.

DEFINITIONS
1. Oppenheim defined international law as the name for the body of customary and conventional rules which are
considered legally binding by the civilised States in their interaction with each other.
2. Whiteman defined international law to be the standard of conduct at a given time for States and other entities
subject thereto.
3. Stark defined international law as a body of law which States feel themselves bound to observe and therefore
to commonly observe in their relation to each other.

[Sir’s opinion, but is debatable: although the term ‘international law’ suggests that it is a ‘law’, it is a misnomer.
There is an absence of legal basis in the real sense. Its legitimacy is not the same as that of a domestic law, wherein
there is a grundnorm in the form of a constitution. In the case of international law, there is no single supreme
authority conferring legitimacy to it in the real sense. The legal basis of international law becomes fragmented
because sanctions lack effectiveness. This legal basis also depends completely on consensus between nations, who
have the option of recusing themselves, thereby affording it a fragmented legitimacy.]

SCOPE OF INTERNATIONAL LAW

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The scope of international law (public + private) is divided into two categories – subjects, i.e., the legal
personalities and the subject-matter.
1. Subjects
 The State. The foremost legal personality that falls under the ambit of international law is the State.
Initially, the phrase ‘civilised nations’ was used in legal documents and treaties. In the pre-WWII era, the
practice of colonisation was rampant. At the time, very few States existed. The Europeans believed that
they were superior to the other races and took on the ‘burden’ of civilising other nations. After the
institution of the United Nations, need was felt to make international law more inclusive and the phrase
‘civilised nations’ was dropped and the term ‘State’ was used in its place.

 International Organisations. They emerged to cater to the varied interests of states, such as security,
economic interests and political interests, among others. The EU, ASEAN, SAARC, etc. represent the
interests and needs of specific regions because it was felt that the representation they had was inadequate.

 Non-State Actors. Organisations such as the Red Cross and Amnesty International are non-state actors.
Individuals and NGOs were brought within the ambit of this category in 1972 at the Stockholm
Conference. Issues such as that of the environment, which is a trans-national issue and affects the dignity
of the individual, are dealt with by these actors. They provide a ‘non-politicised’ understanding of the
issue.

 Sub-Nationals. Article 4 of the Articles on the Responsibility of States for Internationally Wrongful Acts
(ARSIWA) clearly states that sub-nationals cannot be considered as a subject under public international
law. This is because it was understood that the sub-national, as a part of the larger State, would be
adequately represented at international forums. Sub-nationals were, however, given recognition under
agreements such as the North American Free Trade Agreement (NAFTA), wherein for infrastructural
development, they could enter into MOUs with other nations. The Paris Accord, for the first time, gave
sub-nationals recognition at a global level. Led by California, various sub-national actors argued that they
should have a say in decision-making.

2. Subject-Matter. The conduct of nations is not limited only to political or civil matters. International law
concerns itself with almost everything. This includes trade, free trade agreements, and investment dispute
resolution, among others.

FEATURES OF INTERNATIONAL LAW

1. It deals with the conduct of States, and not individuals. States are the principal actors on the international
scene. They are legal entities, aggregates of human beings dominated by an apparatus that wields authority
over them. These secondary subjects have a limited role under international law.

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2. Lack of a central authority. Austin believed that international law was a soft law because it needed a central
authority or a sovereign. Under domestic law, there is a political superior and there is a clear sovereign-
subordinate relationship (vertical relationship). There is no such relationship in international law as all
sovereigns are on the same plane (horizontal relationship). In the international community, no State or group of
States has managed to hold the lasting power required to impose its will on the whole world community. Power
is fragmented and dispersed. Political and military alliances based on convergence of interests have not
hardened into a permanent power structure. The effect of this lack of authority is three-fold:
 Law-making.
– Under national law, law-making is simple as the legislature makes laws. In international law, however,
every country that participates in the law-making process is a sovereign.
– Thus, signing of treaties is difficult as consensus is not an easy task. The majority may agree, but some
nations may still have some reservations, especially on contentious issues such as religion.
 Law determination.
– Upon ratifying a treaty, there are two ways by which it can be made binding – the monoist approach
and the dualist approach.
– Under the monoist approach, there is no difference between treatment of domestic law and
international law, i.e., they are on the same pedestal. The same treaty or law automatically becomes
part of the municipal law. It has applicability as any other domestic law.
– Under the dualist approach, domestic law and international law are not on the same pedestal.
Irrespective of the international obligation, the law should have sovereign backing at the domestic
level. To make it applicable, a separate national legislation is required to be passed. This may also lead
to some conflicts or inconsistencies if there are subsequent amendments in the laws.
 Law enforcement.
– This is a problem because a central authority is absent.
– Several questions arise as to the binding effect of parties that have signed but not ratified a particular
treaty. Such a complication doesn’t arise in domestic law. Thus, enforcement becomes problematic.

3. Collective responsibility. This collective responsibility has two elements:

 States are collectively responsible to conduct themselves in consonance with their obligations. They have
to follow the treaties they have ratified.
 In addition to that, each State may also be held responsible for the conduct of its organs, if such conduct is
attributed to it. This is because the State is the primary subject and is held responsible for the conduct of
all actors within it.

4. Translation of international rules into national legislation. Under the dualist approach, the international
obligation of a State does not automatically become law until it is accepted by a domestic legislation. However,
under the monoist approach, international obligations are automatically translated into domestic instruments.

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5. The range of states’ freedom of action.
 In the international law domain, every country is a sovereign. It cannot be forced or coerced to do
something. Every nation has powers that are distinct from those of other nations.
 The United Kingdom, for instance, cannot be forced to let go of its monarchy. India cannot be forced by
the United Nations to not trade with certain nations. There may be some customary restrictions, but once
they are taken care of, no force can be used.
 Each country has its own governance mechanism that cannot be taken away. It also has complete freedom
as regards the conduct of their foreign policy. That is the private business of each nation.

6. The overriding role of effectiveness.

 International law takes into account the existing power relationships and endeavours to translate them into
legal rules. It is largely based on the principle of effectiveness, that is to say, it provides that only those
claims and situations which are effective can produce legal consequences.
 A situation is deemed to be effective only if it is solidly implanted in real life. Thus, for instance, if a new
state emerges from secession, it will be able to claim international status only after it is apparent that it
undisputedly controls a specific territory and the human community living there. Control over such a state
community must be real and durable.
 Question arises as to whether efficacy can determine legal basis. A claim for statehood can be made only
if ‘effective control’ over the territory is established. Mere occupation or control is not sufficient –
‘effective’ control is necessary.

7. Principle of reciprocity.
 In the international law domain, all states are sovereign in themselves. International rules, even though
they address themselves to all behaviour of States or groups of States, confer rights and impose obligations
on pairs of states only. As a result, each State has a right or an obligation only in relation to one other
state. Such rules can also be termed ‘synallagmatic’ in that they impose reciprocal obligations.
 Even erga omnes obligations (i.e., obligations owed to the entire world), in their concrete application, boil
down to standards applying to pairs of states. Thus, the principle of reciprocity must exist in international
law. Some nations, however, have some reservations to this applicability of this principle.
 For instance, a rule that a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the
receiving state (Article 31.1 of the Vienna Convention on Diplomatic Relations) entails that in the
relations between say, the UK and Indonesia, each State has the right to claim from the other that its
diplomatic agents be immune from the criminal jurisdiction of the other state. The United Kingdom and
Indonesia had reservations specifically against each other. In case of a criminal offence, diplomatic
protection will not be granted and procedure as per domestic law will be followed. Because Indonesia had
reservations, the United Kingdom could also have the similar reservations. The same applies to all other
pairs of States in the international community.

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  One of the few exceptions to this principle is the general rule on piracy, which grants rights even to states
not connected to actual damage.

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 TOPIC 2: HISTORY OF INTERNATIONAL LAW [NOT PART OF THE SYLLABUS]

STAGE 1
From the Peace of Westphalia to the End of the First World War.
 The origin of the international community in its present structure and configuration is usually traced back to the
sixteenth century. It is largely crystallised at the time of the Treaty of Westphalia, which was signed in 1648. It
put an end to the Thirty Years’ War, in which the major countries of Europe had been involved. The conflict
had started in 1618 for religious reasons, namely the struggle between Catholic and Protestant countries but
soon turned into a struggle for military and political hegemony in Europe.
 The French Revolution in 1789 challenged the existing economic system in France. When Napoleon came to
power, he laid emphasis on the territorial expansion of France. The victors felt that they had to protect the
interests of European monarchies against the seeds of revolution.
 In 1815, Napoleon was defeated at Waterloo and the Treaty of Paris was signed, which was a pact between
several countries (including France) that attempted to revive the supremacy of the aristocracy in the region. The
Treaty also instituted the ‘Holy Alliance’ of Austria, Prussia, Russia and Great Britain. France acceded to it in
1818. It envisaged a system for collective security based on the agreement of the big powers and arrived at a set
of measures to be taken against those infringing upon the tranquillity and established order in Europe.
 Later, Europe witnessed the Industrial Revolution and nations started clashing with each other. This turmoil
triggered WWI. The effect of the war was seen throughout Europe and it resulted in the failure of the Treaty of
Paris. The need to prevent another such war emerged due to the economic devastation caused by it.
 The main features of this phase:
– International rules and principles were the product of Western civilisation and bore the imprint of euro-
centricism, Christian ideology and of a ‘free market’ outlook. The basis of international law became the
precepts of Christianity. This led to the emergence of the idea of colonialism.
– International norms and principles were mainly framed by the Great Powers or middle-sized States,
particularly by those States which built up extensive colonial empires. It was felt that international law
governed the colonisers and not the colonised. The nature of law was euro-centric.

STAGE 2
From the First to the Second World War.
 The immediate effect of WWI was the Treaty of Versailles. Countries realised the importance of peace
and cooperation and the League of Nations was established. The League opposed coercive action against
other nations.
 There was a League Council, a Permanent Court of International Justice and various other arbitral
tribunals. Any dispute that arose had to be referred to any of the aforementioned three bodies. After the
award, there was a cool-off period for three months, after which the countries could go to war. The League
also accorded rights to five British dominions for the first time. International law started progressing from
being largely euro-centric to a more open international system.
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  One of the reasons behind the failure of the League was the lack of sanctions and their enforceability.
Furthermore, it did not ban war as a coercive action.
 The Bolshevik Revolution in the aftermath of WWI triggered the idea of socialist principles as well as the
growth of Russia as a global power. On the other side of the world, the United States, which did not have
much power prior to WWI, started developing. This led to the emergence of a bipolar world order.
Socialism asserted the rights of the common people and shared resources, while capitalism asserted the
idea of laissez faire.
 This phase had the following features:
– Self-determination of the peoples, to be applied to national groups in Europe and people under
colonial domination. The League of Nations included five British colonies. In various nations, the
WWI acted as a catalyst to independence movements.
– Socialist internationalism, whereby the USSR pledged itself to assist the working class and political
parties struggling for socialism in any State. For the first time, a member State of the international
community proclaimed a policy aimed at disrupting the fabric of other States and their colonial
possessions.
– The partial rejection of international law. The USSR proclaimed that since all the existing legal
norms and institutions of the international community were the upshot of bourgeois and capitalist
tendencies, they were, by definition, contrary to socialist interests, and would be endorsed only to the
extent that they proved useful to it. They rejected all international norms except these three:
 Customary rules protecting State sovereignty.
 Customary rules on treaty-making, and on diplomatic and consular immunities and privileges.
 Customary rules on the treatment of foreign nationals.
– The substantive equality of States. During the first two phases, the concept of sovereign equality
existed only on paper. It was merely legal (theoretical), and not substantive (practical).
 Two doctrines:
– The Calvo Doctrine was pioneered by an Argentine jurist and dealt with the applicability of
domestic laws over foreign nationals. There should be no distinction with respect to the applicability
of laws on citizens and foreigners. Its applicability increased after the Russian Revolution. Foreign
nationals argued that they must be treated distinct from the citizens of the country. Russia, applying
the Calvo doctrine, contended that no such distinction must be made. If a foreign national is investing
in another country, he should be treated at parity with domestic investors.
– The Draco Doctrine dealt with use of force under national law. It posited that richer nations should
not use force (i.e., war) against the poorer nations for recovery of debts. Economic sanctions may be
used instead. It was understood that war must be a last resort. This doctrine changed the way the
world understood the concept of use of force.

STAGE 3
From the UN Charter to the End of the Cold War.

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  The aftermath of the WWII led to the realisation that a third world war would wipe out humanity entirely,
owing to technological developments. Thus, the third phase was ushered in by the signing of the UN
Charter. The idea that emerged as a result of the Paris Pact was finally put into action by placing a
complete ban on war.
 Furthermore, the United Nations was structurally far more rigid than the League of Nations. The United
Nations Security Council was entrusted with ensuring global peace and had the power to impose sanctions
on aggressor countries.
 In the first two phases, it is seen that the focus of development was on the West. In the aftermath of
WWII, third-world countries started gaining independence and needed a voice on the international forum.
The newly-independent nations had mutual interests in terms of development, employment, colonialism
and poverty. As these countries came together, there was a shift in the development of international law
from the West to the East.
 In the first two phases, the rules followed were rarely codified. In the third phase, however:
– The Statute of the ICJ codified international law for the first time. Article 38(1) of the Statute
provided for the major sources of international law.
– The International Law Commission was established and tasked with the codification of customary
rules.
 The ambit of international law also grew manifold. Previously, it was seen that the Western nations had
the upper hand in international law. Now, however, efforts were made for racial equality and conventions
were entered into to that effect. The International Covenant on Civil and Political Rights (ICCPR) and
International Covenant of Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration
on Human Rights (UDHR) gave formal recognition to the rights of individuals. The understanding of
international law became more nuanced as emphasis was laid on individuals and not just States.
 Previous rules on economic development were skewed in favour of the developed nations. The New
International Economic Order (NIEO), as well as groups such as ASEAN, G-7 and G-20 emerged. They
pushed the interests of the developing nations. It was now understood that economic development was not
the domain of the developed countries alone. This led to a clash between the developed and developing
nations. This led to regionalisation of international law.
 End of Cold War.

STAGE 4
From the End of the Cold War to the Present.
 This phase was characterised by legal, rather than a political development.
 The United States started acting as a global mediator and assumed immense political superiority. It took
upon itself the task of maintain global peace. However, it did so selectively, which allowed it to advance
its interests in the name of ‘maintaining peace’.
 As a consequence, the importance of the United Nations diminished.

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  NIEO suggested that developing countries started taking a hard stance regarding developmental agendas.
In this phase, they realised that they needed the support of developed countries to grow. However, this was
in contradiction with the interests of the developed nations. A compromise was reached between the
developed and developing nations and a mutually agreeable solution was arrived at.
 Legal developments:
 Growth of international trade law.
 GATT was replaced by the WTO in 1994. It was replaced during the Uruguay Rounds. It took
eight years because of the contradictory interests of the nations.
 One contentious issue was the environment. The developed nations were focused on profits,
even at the cost of the environment, environmental degradation affected developing nations
immensely, which were mostly agrarian.
 However, they arrived at a compromise and agreed that it was important to protect the
environment.
 Phytosanitary Measures – legal requirements of packaging element. The developed countries
were very particular about this.
 Terrorism.
 Countries mutually agreed that terrorism was an important issue. They came together to examine the
effects of terrorism and come up with viable solutions. This development also gave rise to the notion
of self-defence in international law. The United States, for instance, did not take permission from
Pakistan before carrying out an attack on Osama Bin Laden.

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 TOPIC 3: SOURCES OF INTERNATIONAL LAW

The Statute of the International Court of Justice, at Article 38, states that when the ICJ has to decide a dispute in
accordance with international law, it can rely on treaties, customary principles, general principles of law and
subsidiary sources such as judicial decisions and the opinions of highly qualified publicists.

FORMAL AND MATERIAL SOURCES

This division has been criticised in the view of peculiar constitutional set-up of international law, keeping in mind
the fact that it is not always possible to maintain a clear separation of substantive and procedural elements. Formal
sources are the sources from which legal rules derive their legal validity, while material sources denote the origin
of the substantive content of that rule.

1. Formal Sources – why I am under an obligation?

 They confer rules an obligatory character and appear to embody the constitutional mechanism for
identifying law. They are codified principles that provide legal validity.
 By virtue of recognition in Article 38, customary law and general principles of law are considered to be
formal sources of law.
 It includes within its ambit anything which is certain.
 Some jurists argue that formal sources must necessarily be codified. As per this view, erga omnes
obligations (obligations owed to the world at large) will not be considered to be formal sources.
 State practice together with opinio juris, i.e., a custom, will be a formal source.

2. Material – what is the content of the obligation?

 They are the political, sociological, economic, moral or religious origins of the legal rules.
 They comprise the actual content of the rules and incorporate the essence or subject-matter of the
regulations. They only provide ideas on the basis of which laws can be formulated.
 Article 38(1)(d) can never be a formal source.
 State practice without opinio juris will be a material source.

Thus, for example, the formal source may be a custom although its material source may be found in a bilateral
treaty concluded many years ago. If some state practice exists, it is a material source unless it is accompanied by
opinion juris.

The ICJ, in the South West Africa cases noted that, “this Court can take account of moral principles only in so far
as these are given a sufficient expression in legal form. Law exists, it is said, to serve a social need; but precisely
for that reason, it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal
service that would be rendered. Humanitarian considerations may constitute the inspirational basis for rules of law,
just as, for instance, the preambular parts of the United Nations Charter constitute the moral and political basis for
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the specific legal provisions thereafter set out. Such considerations do not, however, themselves amount to rules of
law.”

TREATIES
According to Article 2(1)(a) of the Vienna Convention on the Law of Treaties (VCLT), a treaty is an
international agreement concluded between states in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever its designation. They may be
of two types:
 Law-making treaties. They have general applicability. They establish new rules or codify already established
customary law, and can be made applicable even to non-signatories under certain conditions. (UN Charter)
 Treaty contracts. They are agreements entered into by countries which are legally binding in nature. This
would include the North Atlantic Treaty Organisation (NATO), which is an agreement between countries that
makes them legally bound to follow certain military protocols.
 
The VCLT provides for the applicability of treaties. Article 26 of the Convention embodies the principle of ‘Pacta
Sunt Servanda’, i.e., any treaty which is entered into by a party is binding on such party and should be followed in
good faith. This codifies a customary norm and this is often read with Article 31 of the Convention, which deals
with how a treaty obligation should be pursued.
 
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) (2007)
 The primary question in this case was with respect to the jurisdiction of the ICJ.
 It must be noted that a crimes of genocide make a person criminally liable. However, a state cannot be made
criminally liable by the ICJ. It was thus argued that the Court does not possess the requisite jurisdiction, and
that such a matter could be dealt with only by a tribunal.
 It was observed that clause 9 of Genocide Convention provides that any dispute under it shall be referred to the
ICJ. Further, article 36 of ICJ Statute provides that the ICJ will have jurisdiction over matters of interpretation.
 The Court invoked article 26 of the VCLT and held that while the ICJ did not have the power to make the State
criminally liable, it had the jurisdiction to determine whether the State had committed acts of genocide.
 
HOW ARE TREATIES MADE APPLICABLE?
Article 2(1)(b) of the VCLT provides that an international act whereby a state establishes on the international plane
its consent to be bound by a treaty, amounts to ‘ratification’ or ‘acceptance’ or ‘approval’ or ‘accession’ of a treaty.

1. By signature, as under article 12 of the VCLT. This creates a moral obligation on the parties, When the parties
sign a particular treaty, they accede to the acceptance of certain obligations which they will ratify later. By
virtue of article 18 of the VCLT, once the treaty has been signed by a state, it must refrain from doing anything

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 which defeats the object or purpose of the treaty. For instance, China is a signatory to the Marrakesh
Agreement (which established the WTO).

2. By ratification, as under article 14 of the VCLT. Ratification may be either external (monoist states) or
internal (dualist states). In the North Sea Continental Shelf Case (1969), it was affirmed that merely being a
signatory to a treaty does not confer legal obligations on the state; for that, ratification is necessary.

Ratification will express a state’s consent to be bound by a treaty where:

 The treaty so provides;
 It is otherwise established that the negotiating states were agreed that ratification should be required;
 The representative of the state has signed the treaty subject to ratification or the intention of the state to
sign the treaty subject to ratification appears from the full powers of its representative or was expressed
during negotiations.

3. By accession, as under article 15 of the VCLT. This is the normal method by which states become party to a
treaty it has not signed either because:
 The treaty provides that signature is limited to certain states (and the state in question is not such a state);
or
 A particular deadline for signature has passed.

Consent by accession is possible where the treaty so provides, or the negotiating states agree that consent by
accession could occur in the case of the state in question.
 
THE RULE AS TO THIRD STATES
 As per article 2(6) of the UN Charter, the Charter will bind third-parties with respect to international peace and
international security.
 Nicaragua v. United States of America (1986).
– In this case, the question pertained to whether international peace and security were the only grounds on
which third states could be bound; could third states be bound by the concept of self-defence under article
51 of the UN Charter?
– The ICJ relied on article 2(6) of the UN Charter and article 75 of the Geneva Convention on Warfare to
hold that acts of aggression have to be in consonance with international law and that if the rule is of
customary nature, it can be made applicable to third states.
– However, not all customs have general applicability. Only codified customary principles can be made
applicable to third states. This gives a formalistic appearance to customs.
– The ambit of applicability of treaties was extended by the ICJ.

 Barcelona Traction Case (Belgium v. Spain) (1970).

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 – In this case, it was held that there are general principles of law, apart from customary principles, that fall
under the sources of international law.
– However, not all general principles of law are of an obligatory nature; only those rules which are
normative and have been codified under a treaty amount to jus cogens norms (they are norms that cannot
be derogated from, they essentially have a higher threshold).
– If a jus cogens norm imposes an erga omnes obligation (i.e., an obligation that is owed to the world at
large), and if a treaty codifies such an obligation, the provision can be made applicable to third states.

THE RULE ON RESERVATIONS

 Can we force a particular treaty on a sovereign? No. They need to have a choice. A state can have a
‘reservation’ to specific provisions of a treaty.
 The concept of reservations has been laid down in article 2(1)(d) of the Vienna Convention on the Law of
Treaties (VCLT). It entails three elements:
– It must be in the form of a unilateral statement.
– It must be given either at the time of signing or at the time of ratification.
– It must be given with the intention to modify, alter, or recuse oneself from some obligations.
 Statements may be of three kinds – political statements (that are mere statements, no meaning assigned),
interpretive declarations (that affect the legal obligations) and reservations.

 Anglo-French Continental Shelf Arbitration (1977-1978).

– The question in this case pertained the nature of reservations.
– Two tests were laid down – the effect-based test and intention-based test.
– France gave statement altering the meaning of Exclusive Economic Zone (EEZ) given under the
Continental Shelf Convention of 1958, affecting the applicability of the treaty and recused France from
some of its obligations. The question here was whether this statement by France amounted to an
interpretive declaration, or a reservation.
– It was held that such an ascertainment would depend on the effect of the statement. To that it, it asserted
that France’s statement was in the nature of a reservation, as opposed to a mere interpretive statement.

 Article 19 of the VCLT provides the rule as to which reservations can/cannot be taken.
 If the treaty itself is silent on reservations, a general reservation cannot be taken. A reservation has to be
specific.
 If a reservation affects the applicability of the entire treaty, it cannot be taken.
 If the treaty provides an exhaustive list of instances where reservation can be taken, a reservation falling
outside this list will not be considered.
 If a reservation is incompatible with the treaty itself, it cannot be taken. But, what amounts to
incompatibility?

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  The ICJ, in its Advisory Opinion on Reservations to the Genocide Convention (1951), took a very
restrictive understanding. It held that the concept of reservations was based on the notion of
sovereignty. Thus, incompatibility must be looked at from the perspective of each individual
sovereign state. For instance, a reservation to article 51 of the UN Charter (which provides for self-
defence) will have to be looked at from the perspective of each state. However, this view creates a
huge legal problem.
 The International Law Commission’s Practice Note on Reservations was formulated on the belief
that testing compatibility on the basis of sovereignty can be problematic. Instead, it was suggested
that if a particular reservation affects the ‘raison d’etre’ (reason for existence) of the treaty, it must
not be allowed. This principle has been followed in article 53 [sir said article 48 but I think it’s 53 –
check] of the VCLT, which codifies the rule that whatever the case may be, jus cogens norms may
not be derogated from, as well as article 19 of the VCLT which prohibits restrictions of a general
nature.

 United Nations Human Rights Commission hold that reservation to human rights treaties cannot be
permitted. This is because if the nature of such a treaty is looked into, it will be of a jus cogens nature. Thus,
reservations cannot be taken to it. This issue was also brought to the fore in the case of Belilos v. Switzerland,
decided by the European Court of Human Rights in 1988.

CUSTOMARY INTERNATIONAL LAW

These are the practices that emerged from the historical school and the evolution of society itself. It was given
formal recognition as a source of international law in Article 38(1)(b) of the Statute of the International Court of
Justice. They are general practices followed by states that have been accepted as law.

ELEMENTS OF CUSTOMARY INTERNATIONAL LAW

Customary international law has two elements – state practice (objective element) and opinio juris (subjective
element). Both these elements must be fulfilled for a practice to attain the status of a custom.
1. State Practice.
 State practice may entail any act, conduct, omission or usage.
 It may be ascertained through:
– Government interaction and government negotiation. This includes statements of authority. For
instance, India is known for its adverse arbitral mechanism. This can be gleamed from statements
issued by the government, as well as the laws, policies and treaty obligations of the state.
– Judicial decisions of domestic courts. They indicate the stance of a country with respect to any
position of international law. For instance, the US is pro-patentability, while India is not.
– International dialogue. While negotiating treaty obligations or engaging in bilateral talks, the stance
or position of a country with respect to a particular law becomes a source for state practice.

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  The International Law Association’s Report on the Formation of Customary Law (2000) details the
characteristics of state practice.
– An act need not be a physical act only, it may be a verbal act as well. A political speech may also
amount to state practice. Take, for instance, the BJP’s beef-banning propaganda, which it spreads
through speeches across the nation.
– The acts should be of a public nature.
– An act of omission can be a state practice. For instance, in the Palk Strait (between India and Sri
Lanka), there exists an irregular border. Fishermen often enter into each other’s territories, but no
action is taken.

 Is enforceability a factor in determining state practice? In the Fisheries Jurisdiction Case (Iceland v.
UK) (1974), the Court held that enforceability is not an essential element for determining any act as a state
practice. What is more important is the mental element, i.e., the intention of the states. The ICJ does not
concern itself with ‘enforceability’ as an element of state practice.

 Can there be a generalised understanding with respect to state practice? State practice cannot be
understood in a generalised sense; it does not have general applicability. Specific issues must be looked
into.

In the Jurisdiction Immunities of the State Case (Italy v. Germany) (2012), the issue pertained to civil
claims being brought against Germany in Italian domestic courts.
– During WWII, the German Reich had undertaken destructive practices in Italy. There was
expropriation and destruction of property which amounted to civil claims against Germany as a
sovereign.
– These civil claims were brought in the Italian domestic courts. Normally, state practice suggests that
sovereignty is the primary consideration under international law and every sovereign has certain
immunities. The claims were filed against Germany as a sovereign. The matter was referred to ICJ by
Germany on the ground that it was a blatant violation of sovereignty immunity principle.
– The ICJ examined state practice from two different perspectives. One, with respect to sovereign
immunity, and the other, regarding the Italian perspective.
– Germany argued that immunity against civil claims was an established practice of states, Italy argued
that the decisions of the municipal courts of countries can be regarded as state practice.
– The Court asserted that we must look into the practice that courts follow in such cases. Domestic
Courts usually refrain from adjudicating such practices because of the established concept of
sovereign immunity.
– Thus, it held that the Italian Republic had violated its obligation to respect the immunity which
Germany enjoyed under international law by allowing civil claims to be brought against it based on
violations of international humanitarian law committed by the German Reich during WWII.

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2. Opinio Juris.
This element of customary law requires evidence of a belief that a practice is rendered obligatory by the
existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is
implicit in the very notion of ‘opinio juris sive necessitates’. This principle was first given by Francois Geny as
an attempt to differentiate legal custom from mere social usage. Essentially, the States concerned must f eel that
they are conforming to what amounts to a legal obligation.
 In the North Sea Continental Shelf Case (1969), the nature of opinio juris was examined. It was
observed that conviction must necessarily have some legal basis; a mere moral obligation will not suffice.
Custom does not only comprise of a settled practice, there should also be the understanding that the
obligation is a legal one. The case of Nicaragua v. USA also touched upon this point, and it was held that
there must be some legally sound conviction as to the legitimacy of the state practice. nature of opinio
juris.

 Lotus case (Turkey v. France) (1927).

– A vessel by the name of Lotus was sailing in the high seas. At the time, there existed the concept of
floating territory, i.e., the flag state’s jurisdiction. Lotus was carrying the French flag.
– There was an accident with a Turkish vessel due to the negligence of Lotus’s captain. Turkey arrested
and tried him on grounds of manslaughter.
– The dispute went to ICJ and the question before the Court was whether Turkey could try the captain.
– France argued from the conception of negative opinio juris, i.e., that customarily, states tend to
prosecute such cases only before the flag state. The absence of prosecutions by non-flag states
indicated a positive rule of customary international law.
– Turkey argued that no such legal obligation existed,
– The Court held the absence of such prosecutions would only show that states had, in practice,
abstained from instituting criminal proceedings. However, only if such an abstention was based on
some conscious legal duty to abstain, would it amount to a custom. Essentially, that opinio juris is
reflected in acts of states as well as their omissions, if they are made following a belief that the said
state is obligated by law to refrain from acting in a particular manner.
– Herein, France could not prove that there was a legal obligation to send the person back to his country
of origin and the ICJ thus ruled in favour of Turkey.

ASPECTS OF CUSTOMARY INTERNATIONAL LAW.

1. Duration. Some jurists say that duration is important because the practice must have stood the test of time.
However, some other jurists argue against this idea on the ground that many newer areas of law, such as
nuclear law and space law, do not have such long-standing practices. As a result, the concept of instant custom
has emerged.

2. Conformity.
 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. USA) (1986).
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 – In this case, the question was whether an act, which is not in conformity with the established
international principles (jus cogens norms), can be considered to be a customary practice of
international law.
– The USA contended that the act of aggression was a custom for them. Further, they had taken a
reservation to article 51 of the UN Charter and argued that they could thus resort to acts of
aggression.
– The Court held that non-aggression was a jus cogens norm and therefore, despite taking reservation,
the US was under an obligation to fulfil the requisite conditions.
– The Court also attempted to determine the general attitude of state and it was found that an act of
aggression is an act of breach; it does not establish a new custom.
– Thus, for any practice to be a customary principle, it has to be in conformity with jus cogens norms.
To that end, strict conformity is not required but there must be some element of conformity.

 Anglo-Norwegian Fisheries Case (UK v. Norway) (1951).

– This matter pertained to the 10-mile rule; which posited that 10 miles should be counted from the
place where the coast ends to ascertain the territorial bounds of the state.
– Norway had islands (islands are considered to be within the territorial limits of the country) and
argued that the distance must be calculated not from the mainland, but from its last island.
– Norway also did not follow the 10-mile rule. This affected the course of UK ships and the matter was
brought before the ICJ for determination.
– The UK argued that the 10-mile rule was a customary practice. To determine this, the ICJ looked into
the uniformity of the practice and set the threshold for customary international law. It held (at para
73) that state practice must be widespread and virtually uniform.
– The ICJ held that the 10-mile rule was a disputed rule and was not a uniform practice across the
globe. Moreover, Norway had been a persistent objector to this rule (i.e., it had objected to it since its
inception) and was not obligated to follow it.

 Asylum case (Peru v. Colombia).

– The concept of local custom emerged in this case.
– The major concern in this case was with respect to a political criminal, Victor Torre. Peru was
undergoing major political upheaval. Torre had led a coup against the government and went to the
Columbian embassy to obtain asylum, which Columbia granted.
– Thereafter, Peru was requested to give its assent for his safe passage into Columbia. Peru refused on
the ground that the crimes he had indulged in were crimes against humanity and therefore, he needed
to be tried in the domestic courts.
– After the request was denied, Columbia approached the ICJ and pleaded that Peru followed the
practice of granting asylum to political criminals.
– Peru argued that:
 His crimes were not of political nature and so, asylum could not be granted; and
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  There was no local custom that Peru followed for granting of asylum in cases of political crimes.
– The ICJ held that a local custom, as opposed to a general custom, had a different standard proof.
– In case of a general custom, there need not be universal consent; general consent would suffice.
However, in case of a local custom, all the areas coming within a particular region (here, Latin
America) have to accept the practice uniformly; there has to be absolute consensus.
– The Court left the analysis at the level of testing whether the practice is a local custom. No inquiry
was made regarding whether the practice comes within the ambit of general customs. (Ideally, courts
should move from particular to general)
– Columbia could not prove that Peru had consented to the local custom. Thus, its claim failed.

THE PERSISTENT OBJECTOR RULE

This rule dictates that a state will not be bound by a customary principle that it has objected to since its very
inception, as noted in the Anglo-Norwegian Fisheries Case [discussed above].

GENERAL PRINCIPLES OF LAW

General principles of law are used to cover situations of non-liquet, i.e., cases where there are no treaties or
customary principles covering the point of law in question. Unlike municipal or domestic law, international law
doesn’t strictly follow precedent. States that don’t associate themselves with a treaty, are faced with the condition
of ‘no law’, i.e., non-liquet. General principles of law are used to fill in the gaps in legal regimes, that are created
by a lack of treaties and customs. The principle of good faith, compensation, res judicata, and estoppel, among
others, are general principles of law. 

Article 38(1)(c) of the ICJ Statute recognises principles of a general nature that are of relevance in the domestic
arena and are recognised by civilised nations. While there is an element of similarity between custom and general
principles, it must be noted that the application of a general principle of law is not precluded by a state’s objects to
it. Recognition by states is of significance, but consent is not.

ON PRINCIPLES AND RULES

A domestic understanding dictates that a rule discusses a question of ‘what’ (what are the obligations,
requirements), while principles take a more functional approach. They deal with question of ‘why’. For instance,
why compensation is to be paid in case of violation of agreement is a principle, and the quantum, i.e., what the
compensation is, is a rule.

In the Gulf of Maine Case (USA v. Canada), it was held that the principle of sovereignty is a mere principle and
not a rule. According to the ICJ, principles and rules will have the same understanding. Thus, in international law,
there is no difference between the two of the kind that exists in domestic law.

PERSPECTIVES

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1. The Naturalist perspective dictates that general principles have a separate existence. It posits that it is a good
source of law and it can, on its own, lead to further legal developments. 

2. The Positivist perspective, on the other hand, views general principles as a subset of legal customs and
treaties. It posits that they only become applicable when a treaty or custom is in existence. On their own, they
are not a good source of law and cannot effectuate legal development. 

Over the years, the importance of general principles has diminished. This may be because of the fact that today,
there are far fewer ‘gaps’ in the law. Further, we cannot do away with the consent of the state, else we will
compromise the principle of sovereignty. As far as the positivist perspective is concerned, restrictions on usage are
required.

JUDICIAL DECISIONS
Advisory Opinion on Legality of Threat or Use of Nuclear Weapons (1996)
 Some countries had acquired nuclear power, but there was no state practice with respect to nuclear weapons
and the opinio juris with respect to its prohibition was very limited. Thus, no custom existed.
 Provisions of two conventions were in dispute:
– Article 51 of the UN Charter laid down the grounds on which aggression could be used as self-defence.
However, it did not define the situation in which it could be used.
– The Geneva Convention on Warfare was formulated in 1949, when there was no nuclear power at all. It
didn’t thus provide for any restrictions as to the use of nuclear weapons, or any safeguards to that effect.
 If these two conventions were strictly applied, nuclear warfare usage was more or less allowed. However, the
Court applied the principle of good faith, and held that states should not engage themselves with nuclear
warfare, and should instead opt for nuclear disarmament. 

Chorzow Factory (Poland v. Germany) (1928)

 There was a bi-partite agreement for transfer of control over the Upper Silesia area from Germany to Poland. In
it, there was a provision against expropriation. It was provided that after transfer, Poland will not have the right
to expropriate such properties. However, Poland expropriated a nitrate factory in Chorzow, Upper Silesia.
 Germany approached the Permanent Court of International Justice (PCIJ). Poland took the ground of ‘eminent
domain’ and claimed that it was an act of sovereignty.
 The PCIJ focused on the principles of reparation and compensation. It held that there is a principle of general
nature and exists in all legal regimes, according to which a compensation has to be paid for any damage. There
was no distinction between a sovereign and a private person as far as the principle of reparation was concerned.
Therefore, despite the sovereignty of Poland, it was required to pay compensation.
 It was also noted here that general principles do not have the consent element and exist even if the state has not
consented to it.

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Corfu Channel (UK v. Albania) (1949).
 It was the first judgement of the ICJ in the post-WWII era.
 Albania carried out minesweeping operations in the Corfu Channel, which had been declared to be safe after
Albania undertook minesweeping operations in 1945 and 1947. However, two British warships hit a mine and
suffered damage. The United Kingdom sought compensation from Albania.
 In the initial jurisdictional order, the Court discussed the matters of determination of liability of the Albanian
Government and determination of the quantum of compensation.
 In the judgement on merits, the ICJ discussed two general principles of law.
 Circumstantial evidence. It may be used when there is no direct evidence. In the present matter, there
was no direct evidence implicating Albania. However, the facts that the presence of the mine caused the
accident, that the accident occurred in Albania’s territorial waters, and that Albania had declared the
channel as safe led the Court to conclude that Albania was either directly or indirectly responsible for the
accident and must pay compensation to the UK.
 Res judicata. Albania did not object to the payment of compensation, but raised an objection regarding
the determination of the quantum of compensation by ICJ. It contended that the ICJ was precluded from
deciding the quantum of compensation as it could be decided only by bilateral negotiations. The ICJ held
that because there was an existing order which had established the jurisdiction of ICJ in the matter of
determining the quantum of compensation, Albania could not raise such an objection at the present stage.

Nigeria v. Cameroon (1998)

 It was agreed that any dispute between the two states would be resolved by bi-partite agreement.
 Nigeria’s military activities at the Bakasse Peninsula gave rise to the question of sovereignty.
 Cameroon approached the ICJ. Nigeria claimed application of the principle of estoppel due to the fact that there
was already an agreement in place (i.e., the agreement amounts to an act between parties). It understood
estoppel to entail a promise (here, the bilateral agreement) and a subsequent act (dispute resolution).
 Cameroon claimed that only the aggrieved party could claim application of the principle of estoppel. The ICJ
agreed. Nigeria was the party at fault (the aggressor state), and not Cameroon. Thus, Nigeria could not claim
application of the principle of estoppel.

Southwest African Case, II Phase (Liberia & Ethiopia v. Africa) (1966)

 In this case, the question was whether general principles could be used to override the application of treaties
and customary principles.
 The Court responded in the negative and held that the purpose of general principles was to deal with situations
of non-liquet. Therefore, they could not be used to override treaties and customs.
 It also noted that general principles should be used sparingly, only in cases where there is no source to
determine the pertinent legal obligations.

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 SUBSIDIARY SOURCES
Under article 38(1)(d) of the ICJ Statute, resort may also be had to some subsidiary means of interpretation such as
judicial decisions of national and international forums and the opinions of highly qualified publicists.

HIERACHY OF THE SOURCES

WHAT IS THE HIERARCHY?
The hierarchy between sources exists only in times of conflict. It is as follows:
1. Treaties. They are given primacy over customs because:
 Treaties have state consent.
 Customs can be modified by entering into treaties.
 Treaties are very specific in nature.

2. Customary principles.
They are considered to be subsidiary to treaties.

[Note: General principles do not form part of the hierarchy, they are clearly subsidiary]

WHEN IS THE HIERARCHY APPLIED?

1. When obligations from two different sources are in conflict (a custom and a treaty, for instance).
2. When obligations from the same source are in conflict (two treaty provisions, for instance).
3. When jus cogens norms are involved. The definition of jus cogens norms has not been provided anywhere.
More often than not, we interpret these norms as customary norms. All the sources have to satisfy jus cogens
principles. They have to be in conformity with it. Thus, jus cogens is not a source, but rather a status.

WHAT ARE THE TESTS TO BE APPLIED IN CASE OF CONFLICT?

1. Have the treaty obligations been codified as customary norms?
 It may be the case that a treaty has codified a custom and is in conflict with another customary principle
(non-codified). The act of ratification indicates the consent of the state to be legally bound by the treaty.
 If the treaty has been ratified with the intention of departing from the conflicting custom (look into the
intention behind the treaty), then the provision in the treaty would prevail over it. There would be absolute
application of the treaty.

2. Are the customary norms of peremptory nature?

 Pre-emptory norms cannot be derogated from.
 If the conflicting custom (non-codified) is a jus cogens norm, then it will prevail over the treaty obligation.

3. Do either of the provisions act or form an exception?

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 If there is a conflict between two provisions of the same source, and one is an exception to the other, the rule
(as opposed to the exception) will prevail.

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 TOPIC 4: MUNICIPAL LAW AND INTERNATIONAL LAW

THE THEORIES
1. Monoist Theory. No distinction between municipal law and dualist law. Once a treaty has been ratified, it
automatically becomes part of the municipal law. Civil law countries like the US usually follow this principle.
2. Dualist Theory. International law is at a lower pedestal than municipal law. Countries like India and the UK
follow this theory.
3. Reformulation of Dualist Theory. They preclude the fact that municipal law and international law can clash.
Both are independent legal systems and govern specific areas of law.

Advisory Opinion on the Application to Arbitrate

 When the UN Charter came into picture there was a specification agreement (the HQ Agreement). This
obligated every state to have a convoy office in New York.
 PLO terrorist attacks according to the US. PLO wasn’t recognized as a state entity by a lot of countries and in
1974 they were given an observer status wrt UN
 PLO was reqd to have a convoy office in NY because it had an observer status
 Act in the US Congress: Anti Terrorism Act 1957, implication was that it prevented the PLO from having an
establishment on US soil
 W/o having convoy office it is difficult to coordinate and imp for any deliberation or any action or any
obligation imposed by UN Charter – becomes logistically diff to have meetings on a daily basis w/o convoy
office in NY.
 The question of status arose. What was the requirement for considering the status?
 US: the impugned legislation is an Act of municipal nature and US being a sovereign can make such laws in its
domestic regime.
 Question of Status of HQ Agreement: this agreement was central to the implementation of the UN Charter. It
was a facilitating agreement for the UN Charter and therefore the agreement was of international nature.
 The Court had further observed that the domestic Act of US was in conflict with the HQ Agreement.

The Case Concerning Avena and other Mexican Nationals (USA v. Mexico).
 Vienna Convention on Consular Relations was in question. There are 2 states in this context:
a. Receiving State (Article 5 obligations)
b. Requesting State
 Mexican citizens committed heinous crimes in USA. There were 54 Mexican citizens involved in these crimes.
 USA started prosecuting them under its domestic regime. USA started this prosecution without informing the
requisite authorities as per Article 36 of the Convention.
 The convention ensures proper representation of the foreign citizens.

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 USA contended that they weren’t Mexican citizens to start with. They presented a contention on the basis of
“due process”. They claimed that the “due process” requirement fulfils the requirements of the convention.
 ICJ rejected the nationality-based argument of USA. It further said that despite the due process requirement,
the act of ratification is a sovereign act and the convention cannot be violated.
 ICJ on Dualist Principle
a. If you are dealing with foreign nationals, the provisions of the Convention will have direct applicability
once ratified.
b. If you are dealing with citizens, then a State can take the defence of municipal law and the State can do
away with the direct applicability of the Convention.
 US did not pay heed to the ICJ judgment and prosecuted and charged Jose Medellin in Medellin v. Texas
 If foreign nations, there will be direct applicability of the intl rules that have been ratified but with citizens,
they will be governed by the municipal law (even if there is some intl law in place)
 Once Avena was executed, Mexico withdrew the application. Thus the case saw a premature end.
 If it hadn’t been retracted, we may be looking at the possibility of USA being charged with violating the VCCR
provisions.

Medellin v. Texas
 Ratification is an additional obligation that exists in addition to the municipal obligations. This is an absolute
sovereign act
 Once it has been ratified, the understanding of monist and dualist doesn’t come into the picture.
 US argued that it was a dualist country.
 The Ct explained what dualist means. It categorized the subjects of law. According to the ct., in a dualist State
if you are dealing with foreign nationals, the obligations and the impact will have a different status than if
dealing with citizens.

MUNICIPAL LAW IN INTERNATIONAL FORUMS

 The basic rule is that municipal laws are ‘mere facts’. This means that when we talk of municipal law, we do
not interpret the law. We look at the law objectively.
 Objective understanding means that we enumerate what the obligations under international law and municipal
law are and whether municipal law is in conflict with international law.
 Look at whether the municipal law is in conformity with international law or not. If not, then change the
municipal law or make the international law applicable in those cases.
 If international instruments contain a contrary rule and the country has ratified such instrument and conflict
arises, then the international instrument will prevail over the domestic law.

There are certain exceptions wherein the law is interpreted:

1. Municipal law as evidence of state practice with respect to any existing customary principle (both
general and local customs).
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  In such a situation, we cannot look at the law objectively.
 The direct clash here is not between international law and municipal law. International law is given as
evidence of state practice.
 In these cases, we depart from the primary or general rule to see the state practice for the custom in
question.
 Through the state practice, we have to look at the municipal law in question and how the court has
interpreted the law. All these interpretations have to be looked into to determine whether a particular law
qualifies as a state practice or not.
 Not looking at conformity of international law with municipal law, look at whether the municipal law is
sufficient to become state practice and has the element of opinio juris (municipal law becomes the basis of
subsequent international law).
 Applied in ICJ cases (public element is there).

2. Municipal law as a governing law.

 This will be applied in case of arbitral tribunals.
 Looking at municipal law from a contractual point of view (private element).
 Why are we interpreting? What is governing law?
 Normally, when we talk about private international law aspects (dispute resolution through arbitration),
there is a contract. Divided into two categories – a contractual obligation and a dispute resolution clause.
All the obligations arising under the contract originate from those clauses in question. If governing law is
Indian law, then the obligations will be governed by the Indian contract act. If municipal law interpreted,
cannot law down the obligations.
 Thus will have to depart from the general rule of only checking for conformity, we will have to go into the
details of the governing law and check the obligations.

INTERNATIONAL LAW IN MUNICIPAL FORUMS

1. Principle of incorporation.
It suggests that once a treaty has been ratified, it automatically becomes incorporated and applicable in the
domestic regime. It is the practical application of the monoist understanding of law. This is an absolute
application.

2. Principle of transformation / modification.

It suggests that the applicability of international principles can’t be absolute in domestic regimes. International
obligations need to be structured and modified as per the domestic societies. Domestic legislations will thus act
as a connection between the two.

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General principles emanate from domestic arena and find a place in international arena. But that isn’t the case with
treaties and customs and thus whenever a question of interpretation arises, it arises with regard to customs and
treaties only. 

[Isha’s notes begin]

Ambit of such interpretation 
1. UK
a. Customs 
1. Civil law jurisdiction - 
2. Common law Jurisdiction - Municipal legislations can’t be taken as an excuse to run from international
obligations. UK follows the principle of incorporation. Custom will have direct aplivanility in UK.
Oppenheimer v. Caltermor, 1976, Appellate Court
The court had discussed the applicability of customary laws in domestic arena and they have decided on the basis
of Principle of Incorporation. Whenever we talk about customary practices, a wide spread state practice should be
followed by UK so we don’t need further evidence for UK to follow that state practice, if it is a universal practice,
UK will be presumed to follow it. Upholding of customary law is a public policy of UK. So, they based their
decision on this understanding. But this understanding has undergone a change, we have taken a mid path between
the two principles. This case has just been the initial stance of UK. The problem with this judgment was that there
was sometimes a local custom and a corresponding legislation, mow to enforce the general custom will be
overriding the domestic laws and there thus was a direct clash. If applying these laws are public policy an public
policy  is a a part of the Constitution, then IL will become a part of the constitution and UK didn’t have a written
Constitution, so questions of interpretation were endless. Because of this very clash, the stance of UK changed
completely, from P/o incorporation to P/o modification, I.e. all general customs will be subject to domestic
customs.
MacLaine v. Department of Trade and Industries, Volume 80, ILR
When you talk about customs, domestic propositions, practices and legislations can’t be ignored and IL thus can’t
be applied absolutely as far as UK’s condition is considered. We can’t make custom a public policy as it will affect
many domestic legal instruments.
Ex parte Pinochet, 2000, Vol. 1, Appellate Court, p. 61
 Entire implication of the transition process in this case is on the basis of the term ‘international law is a
part of domestic law’.
 Combined understanding of Oppenheimer and PinochetàWhen public policy is based upon international
law, that is to say international law cannot be violated, public policy becomes the parameter on the basis
of which you test the validity of domestic law.
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[[read this case from a book]]
Understanding of international law being a part of public policy was creating difficulties and thus a change was
brought about in the case of:
R v. Jones, 2006 UKHL, p. 16. – Modification principle
 If international law is considered as public policy and “part”, we cannot formulate laws in contravention to
international law. Any custom in the international arena would become applicable in domestic arena
without any filtration.
 I observation: international law is not a part but a source of domestic law. If it is a part there would be
direct applicability without any filtration. When it is considered a source, it will only form a basis of
domestic law and will cancel out the automatic application.
 II observation: Hybrid Approach
 Distinction created: “Automatic applicability” to “selective applicability”. We make a distinction between
customary principles which find relevance in UK domestic regime and those which do not find relevance.
 All those norms which may go against the prevalent domestic law and maybe irrelevant, those will be
ushered into the domestic regime through transformation/modification model. Parliament has the power to
make the norms applicable by modifying them and making them relevant to the domestic regime.
 They changed the word from ‘part’ to ‘source’
 In the domestic regime both laws were applicable
 Liberty to change or modify intl law principles in accordance with the society (earlier this liberty to modify
wasn’t there, it was an incorporation principle)
 Here, modification principle is being spoken about
 If considered a source, it would be the basis of govt and basis on which domestic law would be made (not
the law itself). So when it is the basis, it can be developed according to the needs and development of
society
 Done to stop the invalidation of the municipal laws taking place which became invalid as intl law was
becoming a part of it
 Thus they said intl law is a source and can be used for law making but isn’t the law itself
 This is the present stance

4.9.19
1st case: automatic application
- problem arose because intl law considered a part of the domestic law (?)
- Change was reqd as was derogating the stance and the status given to parliament and if these are contrary to intl
law customs and so become invalid due to this, such a stance has to be changed.
The change was brought about in R v. Jones
Treaties
 Application of treaties: dependent on ratification
 From this act of ratification, 2 things arise:
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 3. if you ratify treaty and parliament has implemented it (Incorporated treaties)
4. ratified and parliament doesn’t implement it (Unincorporated treaties)

Dualist Country
 In a dualist model, applicability of laws/when does a law become applicable in the domestic regime?
5. applied by parliament after being passed by Parliament. That obligation then gets the status of
municipal law with no restriction.
 In the modification model: applicability wrt 2 aspects: foreign national and citizens

Foreign national:
 Their rights and obligations will not depend on the implementation aspect given that the particular treaty
has been ratified (even if the question comes up in a municipal court).
 Here we are talking about applicability on an intl basis and since he is a foreign national, the state’s
obligation towards him will emanate directly from the treaty.

Citizen:
 The applicability for a citizen is of a domestic nature and not intl nature; have to see whether Parliament
has implemented the Act (interpretation of domestic law)
 If it is implemented, but no parliament Act then there will be considered to be no law in place. So if the
court is interpreting the treaty, and decides the obligation of the State on the citizens based on the treaty,
then it will be creation of a new law. More often than not the court will not venture into this because it will
go against separation of powers.
 Incorporation essentially entails an Act of parliament. No distinction b/w this and a normal municipal law.
 The problem arises when it has not been incorporated (it doesn’t have corresponding domestic legislation):
b. Thomas v. Baptist [2000] 2 AC 1
 Entire problem of the separation of power was brought about int his case
 Observation: municipal courts would ordinarily not give effect to the international obligations arising out
of any treaty, which has not been implemented by the parliament.
 The court by giving this observation has talked about SoP. It further discussed that the reason this isn’t
given, it would derogate the entire structure established.
 The responsibility of the domestic court isn’t to determine the intl obligation of the country but the
obligation towards the citizens. The intl obligation would only be determined wrt foreign nationals as they
don’t fall within the jurisdiction of that country.
R v. Lyons [2003] 1 AC 976
 This spoke about the direct application of the unincorporated treaties
 Spoke of the enforceable rights and these have to enforced by the Parliament, not the resp of the ct to apply
indirectly such treaties. If no corresponding domestic act and applying it would be domestic fraud and
against the public policy of the country [stark contrast to the first case regarding customs where they said
28
 that enforceability of intl law is the public policy of the state, so stark contrast in the stance taken by UK
courts wrt applicability of customs and treaties] [US is diff, it takes the stance of monist country in theory
but in practice it is more dualist]

5.9.19

Why is SoP violated when the court implements unincorporated treaties?

If the UK SC interprets a particular treaty and rules on it, it will become a precedent that the domestic regime
would follow. Therefore, SoP will be violated as court will be making law and not Parliament.
USA
1. Avena Case
 The stance of USA wrt intl law in domestic arena was displayed by this case.
 Held: Had to retract whatever passed by the US courts and have to go for retrial

 The stance historically taken by USA was a monist stance but this was just officially. The practice of US
courts show that the USA has followed principle if ambivalence. But even this is a censured way of
looking at it. The USA rather follows a stance of convenience.

 Its decisions show principles of monist and dualist nature and this is based on the principle of convenience.
When the US’s interests are in favor then it is monist but if it is against its interest it becomes a dualist state
c. Customs
2. Schroeder v. Bissel 5 F2d 838 (1935)
 Customary international law forms a part of the US domestic legal regime
 This was the initial case that talked of the application of customs in US law.
 Understanding of ‘part’ can be taken from the UK case of Ex parte Pinochet (if domestic law doesn’t
determine a right, still have international law to rely upon).
Torres v. Oklahoma
 In this case, Avena was upheld. Because the treaties were upheld, the ICJ judgments would be binding
[In USA, there isn’t much of difference b/w treaties and customs and so lot of cases overlap. A particular custom
may have been codified in a treaty]
 Due to the binding nature, there would have to be a retrial. Reminiscent of the monist stance
Medellin v. Texas (2008)
 Last case in response to Avena
 Medellin argued that he had to go for retrial as ICJ judgments are binding + memorandum issued that decn
issued by ICJ must be followed by State courts
 The court took a dualist stance here
 The stance was that if ICJ judgment followed here, the intl ct doesn’t understand the domestic law of each
country. The individual rights aren’t in question, the sovereign rights are in question
29
  Here, the case was criminal in nature (murder and rape). Individual rights in question and not sovereign
rights
 The court said if retrial then it would derogate the justice system of Texas
 The ICJ judgment was of foreign nature and cannot allow ICJ judgment to destroy or derogate the justice
mechanism of a state. So the binding nature of the ICJ judgment wasn’t accepted by the court
 So no retrial as it would go against the domestic law (of Texas not USA)
 Second reason: Separation of powers. Whether the President is allowed to make the memorandum. If he
made such a memorandum he would function in excess of his powers and functions.
 This case provided a lot of confusion as to what USA is trying to do

USA’s stance hasn’t been clarified till date.

 If there is any Congressional Act and there is a contravening customary international law, the Act cannot
be challenged on the ground of contravention of CIL (not the case in UK because first intl law is ‘part’ and
second intl law became a source, none of these stances have been provided for in the USA)
6. Supremacy of Congress/domestic law over international law

Committee of United States Citizens Staying in Nicaragua v. Reagan

 Directly connected to the military and paramilitary activities of USA in Nicaragua
 The UC Congress passed a resolution allowing US to provide financial and military assistance to the reel
groups ‘contras’.
 The rebel groups became more powerful due to the assistance and the attacks started getting more frequent
 When civil war was going on in the country, the US citizens are affected by the attacks of the contras
 These US citizens filed a case in the US SC that the granting of aid to rebels was against the intl law
principles (non-aggression) and the providing of financial assistance was affecting the US citizens and
because of this were indirectly affecting their rights as well.
 The citizens made CIL a basis for arguing their case
 The court didn’t agree that the US had violated CIL. Reasons:
1. The responsibility of the court isn’t to look into the political questions
7. Doctrine of Political Thicket: If there is any question, which is of a political nature (also of legal
nature but if answered would have a political nature to it [question of law of a particular nature]),
the court should refrain from answering it. This is because if answered, it would affect the political
relations which essentially is a responsibility of the political executive and in some cases, the
legislature.
2. Doctrine of Separation of Power
- Here, Congress is passing a law in support of USA’s stance in Nicaragua. USA has a strict separation of
power understanding; the judiciary has to merely interpret the law. All instances connected to political
scenario of the country, is not the concern or jurisdiction of the court. The court has to only see if the law
30
 has been passed appropriately or adequately. The law passed here was an extension of the US’s political
stance in Nicaragua so it cannot be held invalid on the basis that the rights of the people are getting violated.
 This is a very specific judgment talking about a specific situation. In this case it was of a political nature
but there might be other cases where there is no political nature but even then this case would apply as the
court held that the law cannot be challenged

6.9.19
 Unlike UK, USA doesn’t have a stark contrast b/w customary law and treaty law.
 US’ understanding of the principle of monism comes from the supremacy clause, which is Article VI, s. 2
of the US Constitution
1. This clause states that any treaty ratified under the authority of USA will have applicability all over USA
and binding on state courts. This means that it is a federal law. President is ratifying authority
2. This article then talks of the effect of state laws. It states that any state law would not be considered if the
treaty has been ratified.
 Even if the treaty has been ratified, they are then of two types:

i. Self executing
- Those which do not require an enabling Act
- It precludes the involvement of Congress
- Third Restatement on Foreign Relations, s. 111 provides for the categories but doesn’t define:
1. Treaty relating to friendly relations, commerce, navigation
2. Treaties exercising or providing for rights of individuals (In the Medellin case, this was
applied)
3. It also provides for a presumption. If there is an ambiguity as to whether a treaty is self
executing or not, the presumption is that it is self executing
- Doesn’t need a separate Act, simple ratification is enough and then there will be applicability. This aspect
arose in the Medellin case as will be discussed.

[in 2004, when Torres arose, due to the supremacy clause ad the presumption of the self executing treaty, it was
held that US was a monist state.]

ii. Non-self executing

Medellin
 Understanding of the court in Avena: Once a particular treaty is ratified, it forms a different obligation, in
addition to the domestic obligation.
 VCCR should ideally have been considered a self-executing treaty base don the Third Restatement, but the
court considered other things like whether the ICJ decision is binding on the State court. To answer this,

31
 the court used Art 59 of the ICJ [decn is binding on the parties] Statute r/w Article 94 UN Charter
[compliance of UN members with ICJ decisions].
 US President’s Memorandum: The ICJ Judgment binding and all state courts have to follow it
 The State ct decides whether the Avena judgment would be binding and whether thee would be retrial. This
went against the state law of Texas because it didn’t allow for retrial of a case once decided
 So the question was:
1. whether the VCCR, ICJ, UNC are self executing or not [if self executing, then USA has already ratified and
come within ambit of supremacy clause and so will have to retry ]
2. Art 59 is always read with 94. Compliance doesn’t necessarily mean that it is binding. The passing of the
memorandum could also be an Act of compliance. So whether this would come under compliance?
 If you look at language, it never suggested the binding nature was applicable to the domestic regime as
well, only binding to the State as a sovereign.
- No immediate recourse needed

7.9.19 (Vinayak and Vaidehi’s presentations)

The relevance of the cases: US’ stance and practice and trend change wrt self executing and non self executing
treaty
Torres v Oklahoma
(Vinayak)
 First case in US state law that pardons someone on death row on the basis of an ICJ case
 Avena decn: Article 36 of VCCR (procedure a state party must follow when arresting or detaining a
national of another state party to the convention). Certain rules and procedure that the party arresting has to
follow.
- The obligations:
1. (1)a: authorized consular official can communicate freely with his national being arrested
2. (1) b: The foreign national shall have access to a consular officer
3. (1) c: An authority of a receiving state must allow a foreign national to have consular access
4. 36(2): receiving state’s laws and regs must allow full effort to be given to the purposes for which right
accorded u/Art 36 are intended
 On the basis of Art 36, a series of cases filed against USA. Across USA, foreign nationals sentenced to
death row w/o being notified under art. 36. Two imp cases: Avena and La Grande (Mexican and German
nationals). Avena’s case gave effect to Torres v. Oklahoma. La Grande case wasn’t given effect to in US’
domestic law
 In Avena’s case Art 36 was violated, USA didn’t follow. Wrt 36(2): 3 Mexican nationals, whose
convictions have become final due to all appeals exhausted (no more provision in law to provide them
security) and they weren’t notified about their Art 36 rights, rights thus violated

32
  In Avena there were 52 Mexican nationals and Torres was one of them. Torres’ execution date was very
soon and so reqd immediate attention (5-7 days after the Avena case).
- Oklahoma gave effect to Article 36
 According to Oklahoma SC, the VCCR was concluded to be a self executing treaty because Torres was
given relief on the basis of Article 36
Medellin v. Texas
(Vaidehi)
Optional Protocol to the VCCR and not the VCCR was in question
 Avena Case, Medellin was one of the Mexican nationals
 Mexico sued the US in the ICJ they asserted the US had violated VCCR which reqd local authorities of
their right to consult with their countries diplomats.
 Medellin was given the Miranda warning but was given access to consult with the Mexican consulate.
 The decision by the ICJ in Avena was that the US was obliged to have the cases reopened and reconsidered
- the decn conveyed that the US had acted in error
 In early 2005, the White House announced via President Memorandum that it would abide by the ICJ decn
in Avena.
 The directive that the case had to be reopened and reconsidered so the SC dismissed Medellin’s case
 The Texas court refused to change their rules, saying they would bar reconsideration in this case
 Bush admin intervened in Medellin’s favour and the SC was asked to overturn the Texas court’s decn.
 In 2008, in Medellin v Texas and the SC rejected Bush’s arguments and cleared the way for the execution
 The ICJ ruled that USA had violated its treaty obligations
 ICJ passed a stay order
 The State said that it would continue with the execution despite ICJ’s stay order
- the world court has not standing in Texas and they aren’t bound to follow their directives
 The three broad points decided in Medellin:
1. Even if an intl treaty may constitute and intl obligation it is not binding unless the congress has enacted
statutes enacting it or the treaty is a self executing treaty
2. The court held that the decn of the ICJ are not binding domestic law
3. The President lacks the power to enforce intl decn of the ICJ (so the memorandum wasn’t within his
power)
 A State may consent to jurisdiction on any question arising under a treaty or general intl law or
specifically, a specific category of cases pursuant to a specific treaty.
- optional protocol: a treaty that complements or adds to an existing human rights treaty
 Medellin signed a confession after Miranda Warning but not advised by the Texas authorities to contact
Mexican consular members.

To be kept in mind while reading this case:

1. Supremacy clause
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2. Third restatement
- Sub categories of treaties that fall under the ambit of self executing treaty
3. Presumption taken in case of ambiguity]
 It was held that neither the VCCR or ICJ Statute or optional protocol was self executing
 It stated that self executing is one that can be directly applied in courts and non se cannot be
 Most scholars consider self executing treaties as purely a matter of domestic law
 The judgment stated “by virtue of the supremacy clause, the treaties requiring compliance w the Avena
judgment was already law of the land by which all courts are bound”.
 They refute saying that (make the observation wrt supremacy): “if the ICJ judgments were regarded as
automatic enforcement law, directly be binding pursuant to supremacy clause”
 Supremacy clause is provided for in the Constitution
 The VCCR and the Optional Protocol isn’t self executing, no intention that it would be binding without a
domestic legislation
[Vaidehi will email the notes – check those]
 The court rejected the argument regarding the president’s memorandum – neither the govt or defendant that
cited statutory authority that allowed President to act had in stead cited intl treaty
 The judgment disagreed with the arguments and said that the Pres has an array of diplomatic means to
enforce intl obligations but unilaterally converting a non self exec treaty int o a self exec one wasn’t
possible
 A review of the executive actions in prior cases cannot suffer the claim that Congress had agreed to the
President’s acts

10.9.19
Questions that arose in Medellin:
1) Supremacy Clause
2) Whether self executing or non self executing? Defn wrt self executing treaties
- Categories of self executing treaties
- Whether the treaty could be considered a self executing treaty
- The imp of self executing treaty is that it doesn’t require an enabling act
- Medellin’s case didn’t consider that. Difference b/w Torres and Medellin as the treaties in question were
different: VCCR v Optional Protocol to VCCR (Optional Protocols aren’t substantive treaties, they merely further
the object of the treaty)
- Even if we consider the nature of the OP, if doubt as to the nature, difficulty wrt determining nature of the treaty
there is a presumption of self executing. Presumption is imp – beneficial interpretation in favour of international
law

3) Memorandum giving effect to the ICJ judgment; binding on States’ laws and courts
- The decn of the court on this aspect can be understood by the Doctrine of SoP. US has strict SoP

34
- Watertight compartments. This cannot be overthrown under any circumstances, have to follow this under any circ,
cannot be diluted no matter what
- The power of the Congress or Senate is to make treaty applicable
- The laws are formulated by Congress, President at max can make an executive order (which is somewhat
equivalent to the ordinance making powers of India)

(USA is a Monist country but seemed to change to a dualist country with this case)

[Isha’s notes end]

12.09.19
THE POSITION IN INDIA
Article 51 (foster peace, international relations, harmony with international laws) and Article 253

Kesvananda Bharti talks about how to interpret domestic laws. The objectives and principles contained in the
UDHR (addresses human rights aspects) must be borne in mind.

Minerva Mills was with respect to the status of article 51, which is a non-binding directive principle of state
policy. It made a fundamental observation in saying that article 51 had weightage equivalent to Part III. This means
that international law becomes the basis for formulation of domestic laws, since article 51 talks about harmonising
domestic law with international law. The Court has, however, not strictly followed this rule.

Salil Bali v. Union of India.

 Intention of Juvenile Justice Act was that any juvenile below 18 was to be tried separately
 The Criminal Amendment of 2013 brought corresponding changes to the Juvenile Justice Act. Art. I of the Act
defined who would be a juvenile.
[Convention on Right of Child’s enabling Act was the Juvenile Justice Act and who was a juvenile was wrt to the
Convention and then the amendment came)
 The understanding of minor was changed to any person who was 16 or under (from 18 or under). The
Amendment Act changed rape laws to make the defn of minor to meet the above
 When the defn was changed, the constitutionality of the Act was challenged
 There were 2-3 aspects of the understanding of the court
1. Indian regime is a dualist regime, mandatory to have an enabling act to interpret provisions
2. Status that would be accorded. The enabling act become a face or a representative of the international
instrument
3. However, after such an observation, ct upheld the constitutionality. The exception kept was that when
interpreting a law have to keep in min the object and purpose of the amendment. It doesn’t necessarily lead
to a conflict. Whether the amended understanding was to be applied? Prospective appl would be there but

35
 whether constitutional? It has to be in harmony with intl law but look into O&P. The earlier understanding
was that if below age of 18 then he cant understand the repercussion of his Ac t and if treated like a
hardened criminal he wouldn’t be reformed, innocence would be lost due to the company he would be kept
with. The change only brought about a change wrt a few of the aspects and not a general change.
- if indulging in an act of rape, difficult to believe that that person is not understanding his act
- Thus this specific provision of the IPC would be an exception. If the amendment was of a general nature
and completely changed the understanding of the defn of minor then it would violate the intl treaty.

PUCL v. Union of India (1997).

 Surveillance and phone-tapping laws were in question. Police persons allowed to tap phones. No element of
consent involved. Problem arose because it became very arbitrary. Cons challenged on three grounds:
1. Art. 14. Concept lacked intelligible differentia. On what grounds were these powers given? Arb antithetical
to equality.
2. Art. 19. Violated right to freedom of speech and expression. Govt. / concerned individuals might be
listening.
3. Art. 21. Evoked from the sense of the right to privacy. Phone forms part of private part of personal
conversations. Personal conversations not relevant for police authorities.
 International Convention on Civil and Political Rights – art. 17 (right to privacy) and art. 19 (speech and
expression).
 Only precedent with respect to privacy at the time was ADM Jabalpur (Cons Bench). The position was that it
was not a fundamental right. We had no enabling act for the ICCPR. 19 of ICCPR was accepted as 19 of the
cons. Same cannot be said for art. 17. Art. 17 does not fall squarely within the domain of FRs and cannot be
used to strike a law down. The court said that art. 19 ICCPR was guaranteed by the Union of India under art.
19(1)(a) of the Constitution, which is also consistent with its international obligations.
 The impugned law was struck down on grounds of articles 14 and 19(1)(a) of the Constitution of India, as well
as article 19 of the ICCPR.

NALSA v. Union of India (2014). The recognition of the third gender was in question.
 The recognition of a third gender as a specific category was in question (Art. 21)
 The principles of UDHR and ICCPR were in question
- Art 1, UDHR: Protection of human rights (not outrightly invoked)
- Art 17: Right to privacy (this was outrightly invoked)
 Whether the people not falling under any of the genders whether they have constitutional rights
 Held: Recognized the third category of genders and that there is no binary gender of man and woman. It
doesn’t only have social but biological contentions. Have to have understanding that third genders are people
who should be recognized by Const. They are ‘persons’
 According to the ratio Art. 17 of ICCPR was not given explicit recognition under Article 21 of the
Constitution. It was an obiter that when talking of the anatomical choices one makes, all these choices fall

36
 under the pvt forum of life and not a public aspect. It would be intrusive on part of the govt to make laws in
that sphere. Need to protect privacy of these people. They recognized privacy as part of the right to life but this
was he obiter (there was no explicit recognition/ratio).

K. Puttaswamy v. Union of India (2017).

 The question was whether the right to privacy fell under the ambit of article 21.
 Held explicitly for the first time that right to privacy is part of Article 21. W/o this right, an individual cannot
enjoy his life to the fullest.
 In this case, the right to privacy was held to be a part of the right to life under Article 21.

Navtej Singh Johar v. Union of India (2018). The right to privacy was invoked in the context of the right to
choose a sexual partner. Section 377 of the IPC was decriminalised and the right to privacy was invoked with
regard to sexual orientation. The entire discussion in the NALSA case was borrowed. This case was a natural
conclusion of the decision of the court in Puttaswamy.

Jeeja Ghosh v. UOI

 Interpretation of VCLT
 A lady was thrown off a flight on the grounds that she was unwell and not fit for travel
 Her contention was that she was thrown out because she was physically disabled
 The international convention in question here was Convention on Rights of person with Disabilities
 When it came to court, the court asked whether there was an enabling act in India.
 The UDHR was invoked, read with the Convention that said that no person shall be differentiated on the
grounds of their disability
 VCLT was invoked
 The article of the VCLT that was referred to was 26. VCLT hasn’t been ratified by India. But court still
interpreted Article 26 (good faith) [it was mentioned as Art 27 in the judgment] to interpret the Convention and
on that basis ordered compensation
 It was a first time that a non-ratified treaty (VCLT) was applied to an Indian case.
 It was applied on the basis of customary international law

G. Sundarajan v. Union of India. The question in this case was with regard to the Convention on Safety of Spent
Fuel Management. Normally, the life cycle is of 5-6 years, have to be disposed. they can’t be used for power
generation but still have radioactive nature. All places they come in touch with become radioactive,
environmentally hazardous. This convention talks about how these rods have to be disposed, after the end of their
life cycle.

Kundakulam Plant in Tamil Nadu. No proper disposal. PIL filed claiming compliance with the Convention. India
not party, so government said it had no such obligation. Rules related to nuclear power are quickly acquiring
37
customary nature. It is not possible to strict restrict one area of CIL from another; diff conventions but they are
linked somewhere down the line. With international nuclear laws, comes the aspect of transboundary harm.
Because of all these reasons, the Court held even if a country has not ratified a convention, it will be bound by the
principles, especially because it concerns a threat to life. Article 21 includes the right to have a liveable
environment. The SC ordered the GOI to ensure compliance with legal rules and establish proper mechanism for
disposal of nuclear waste in accordance with its international obligations.

Ktaer Abbas Habib v. Union of India. This case pertained to the application of the Refugee Convention. Before
the PIL concerning the Rohingya community, this was one of the leading cases that addressed the question of non-
refoulment. India has not ratified the Refugee Convention. When this case came into the picture, the Court had to
analyse whether the principle of non-refoulment can be made applicable to India. The Court held that non-
refoulment is a customary principle of law, in addition to being a treaty obligation under the Refugee Convention.
Thus, it applies to the Indian scenario as well.

In the Rohingya case, a similar issue was in question, but the Court held that non-refoulment did not apply. Clash
arose there between the principles of non-refoulment and the principles of state security and sovereignty, since it
was alleged that members of the Rohingya community had links with ISIS. The Court, in this case, held that the
principle of sovereignty forms the basis of international law and cannot be overlooked. A balancing exercise has to
be undertaken every time, and decision must be taken accordingly, after looking at all the surrounding and
contradictory rules.

38
 TOPIC 6: CREATION AND INCIDENCE OF STATEHOOD

The concept of state was first developed in the Montevideo Convention, 1933. It provides for some characteristics,
rather than providing for a ‘definition’ in the strict sense of the term. These characteristics are enumerated in article
1 – population, territory, government and the freedom to enter into international agreements (linked to the notions
of independence and sovereignty).
1. Population.
 The understanding of this characteristic in the international realm differs from its understanding in the
municipal realm. In the international context, we understand population as a definite group of individuals,
having an element of homogeneity.
 This ‘homogeneity’ is understood with respect to nationality, i.e., the group of individuals must identify as
belonging to one nation; it is a feeling a belongingness towards a country which is considered as a
sovereign.
 The Taliban has two wings, the civil wing (statements, negotiations, etc.) and the political wing (terrorist
attacks). The civil wing is a very advanced force. After occupation, they developed a proper governance
mechanism. The understanding of the people was that they were citizens of Afghanistan. So, the principle
of homogeneity stood fulfilled, even though the Taliban was the occupying force.

2. Territory.
 It refers to the territorial bounds within which the population resides. The sovereign must be exercising
some element of control over that geographical area, and this control must be effective.
 The ISIS exercised extensive control over Syria during the Syrian War, but was not recognised as a state.
 The term ‘territory’ is qualified by the term ‘defined’. Defined territories are those over which control is
absolute. Question then arises as to the status of disputed territories.
 However, even if the territory is disputed, the government would still assert that the sovereign has control.
 Take Kashmir, for instance. India shows POK and Aksai Chin as part of its territory, while Pakistan shows
it to be a part of its territory. Neither government is willing to budge from its position and continues to
assert its control over the disputed territory.

3. Government.
 There are certain characteristics that a government must possess:
– It must be stable.
– It must be the sole legislative and executive authority.
– The principle of legal exclusivity must apply, i.e., that anything that happens in that area (that
requires legal intervention) must be determined by that government alone. It must be the exclusive
sovereign control.
 Taliban and ISIS example.

39
 – Both were terrorist forces that illegally occupied territory (i.e., they were not the democratically
elected authority), and had their own governance mechanisms.
– The ISIS was an ‘occupying force’ in Syria. There was a tussle with the sovereign forces. The ISIS
was never the sole legislative authority, and the citizens of Syria and Iraq did not have a sense of
belongingness towards ISIS as a state. The ISIS was always seen to be a rebel force.
– Taliban too was an occupying force in Afghanistan. However, the difference lies in the fact that at a
point of time, there was no sovereign force opposing its rule. This suggests that it was stable,
exercised sole legislative and executive authority, and enjoyed legal exclusivity. Thus, the legal status
of Afghanistan as a state itself was in question.
 Similarly, the LTTE had established a separate authority in northern Sri Lanka. However, the sovereignty
and legal status of Sri Lanka was never in question and the LTTE was always seen as a rebel force.

4. Freedom to enter into agreements with other countries.

 Freedom has two aspects, independence and sovereignty. Both are considered to be standalone concepts.
These two terms are often used interchangeably and contain overlapping elements.
 Sovereignty entails freedom from external influence and the concept of absolute power. It is a wider
concept than independence.
 The difference between the two can be made clear by an understanding of two concepts:
– Vassal state.
 Such entities retain some amount of sovereignty with themselves.
 The entities are not independent, but do possesses an element of sovereignty. This is only legal
sovereignty, and not territorial sovereignty.
 Hong Kong, for instance, has a defined population; the citizens believe themselves to be
nationals of the state of Hong Kong. Irrespective of the political scenario, the laws developed in
Hong Kong apply only to Hong Kong. It doesn’t have representation at the US and is considered
to be within China, which includes mainland China, Hong Kong and Taiwan.
– Protectorate states.
 They have their own legal existence in international law and are referred to as protectorate states
because they are accorded protection with respect to some elements of sovereignty.
 Unlike vassal states, which are not independent, protectorate states are independent and enjoy
complete sovereignty. From this sovereignty, it decides to part with certain aspects.
 Example is Bhutan. It is an independent and sovereign country. But the departments of defence
and economy are governed by Indian laws specially formulated for Bhutan with its prior consent.

 The US Nationals in Morocco case (France v. USA). This case was decided at a time when
African countries were becoming independent. Morocco had previously been French territory.
After independence, it did not have the expertise to make laws relating to its trading partners. So,
it parted with some of its powers and allowed France to make laws on customs duties. France did
not have friendly relations with USA, on which heavy custom duty was imposed. The US
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 citizens in Morocco complained about these duties. They argued that French control was a
violation of the principle of sovereignty (and hence, international law) since France could
impose duties without the consent of Morocco.
The ICJ made a distinction and identified rights that could be parted in such a manner. It held
that peaceful parting away of rights does not affect the principle of sovereignty. You have to see
whether or not freedom is being affected. Further, where there is an ambiguity, a presumption
arises that freedom remains intact (in this case, however, the court talked about sovereignty
specifically, rather than the wider concept of freedom).

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 TOPIC 7: THE PRINCIPLE OF RECOGNITION

Recognition follows the parameters of statehood and is a necessary conclusion of it (i.e., if the four conditions of
statehood are fulfilled, recognition necessarily follows). It is a sovereign act, primarily of diplomatic or political
nature, having no legal basis, concerning the acceptance of a new state within the international community.

There is no one single view regarding the basis of recognition. Some people don’t agree with the idea of
recognition being a necessary conclusion of statehood. Based on this difference, we get two theories.

THE TWO THEORIES

1. The constitutive theory.
 This theory views recognition as a parameter of statehood, and not as a necessary conclusion of it. Thus, if
there is no recognition, there is no state.
 It maintains that it is the act of recognition by other states that creates a new state and endows it with legal
personality, and not the process by which it actually obtained independence. Thus, new states are
established in the international community as fully-fledged subjects of international law by virtue of the
will and consent of already existing states.
 It adds one more parameter to the four conditions stipulated in the Montevideo Convention.
 The disadvantage of this approach is that an unrecognised state may not be subject to the obligations
imposed by international law and may accordingly be free from restraints such as the prohibition on
aggression. A further complication would arise if a state were recognised by some but not other states.
 It is argued that the application of this theory makes the Montevideo Convention a mere puppet in the
hands of the powerful countries. It gives them the power to refuse recognition of a state, if they so desire,
and according to their arbitrary whims.
– In 1974, the Arab nations recognised Palestine as a state. However, for the purpose of the United
Nations and various multilateral agreements, Palestine has never been recognised as a state, because
the US being an ally of Israel does not want that.
– Had declaration been the basis of recognition, the US would never have recognised India as a state
due to its close ties with Pakistan in 1947.
– The question of recognition of organisations such as ISIS also arises. Some nations may recognise it
as a state, while others may not.

2. The declarative / declaratory theory.

 It came into existence as a reaction to the constitutive theory.
 According to it, recognition is a mere act, which may or may not be given. It is more flexible.
 It is merely a declaration to the effect that the four conditions are fulfilled and a state is brought into
existence.

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  It maintains that new state will acquire capacity in international law not by virtue of the consent of others,
but by virtue of a particular factual situation. It will be legally constituted by its own efforts and
circumstances and will not have to await the procedure of recognition by other states.
 It emphasises the factual situation and minimises the power of states to confer legal personality.
 The Montevideo Convention is based on the declarative theory because of the notion of sovereignty. The
UNSC operates on the basis of veto power. If recognition is made a legal requirement, one of the 5 nations
in the UNSC can choose to veto the resolution if it so desires. This gives an immense amount of power to
those nations. This is the reason why recognition is not made a legal requirement.

TYPES OF RECOGNITION
1. Recognition of a state.
 It is based on the declarative theory, and not on the constitutive theory.
 The fact that recognition is a mere formalistic statement makes it very abstract.
 There is no set format as to recognition.
 The recognition of a state is not affected by regime changes, and is thus somewhat absolute.

The US and the UK both support the application of the declarative theory, but ground their decisions on
different reasons:
 The US. In 1948, the matter was considered at a conference. The US Secretary of State supported the
declarative theory and suggested that recognition is nothing but a sovereign declaration and cannot be
called into question by any other state.
 The UK. It too supported the declarative theory, but did so on the ground that recognition cannot be seen
as a ‘legal parameter’. The Montevideo Convention provides for parameters. Since recognition is a mere
statement as to the existence of a particular state, it does not qualify as a ‘parameter’. Recognition would
not add anything substantial to the criteria. Even if we take the recognition element away, the entity still
persists. Recognition is nothing but a formal declaration as to something that is already existing.

2. Recognition of a government.
 If a state is not given recognition, no rights or obligations can be attributed to it. Question then arises as to
how a claim may be brought against it in case of dispute.
 Due to political problems or diplomatic differences, some states may not recognise other states as
sovereigns. But may still be affected by the actions of governments, or may want to associate with them.
 When we are recognising a state, we are recognising the fact that the parameters of statehood are satisfied.
In the case of recognition of a government, recognition may be of a de facto government, or of a regime
exercising effective control.
 Recognition of an entity as the government of a state implies that the recognising state will deal with the
government as the governing authority of the state and accept the usual legal consequences of such status
in terms of privileges and immunities within the domestic legal order.

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  A government can be recognised only when a state has not been recognised. If the regime changes, the
recognition ceases to exist. Thus, the recognition of a government is necessarily affected by a regime
change.
 For instance, the US recognised Afghanistan as a state. When the Taliban overthrew the government, the
recognition of Israel as a nation did not cease. Had the US only recognised the Israeli government, it
would have had to recognise the Taliban after the regime change in order to bring a claim against it.
 Also consider the dispute between Israel and Palestine.
– Arab states recognise Palestine as a state, but don’t recognise Israel.
– The legal obligations of Israel are brought into question every time an issue arises at the Gaza strip.
– The question of enforcement then becomes tricky since Arab nations don’t consider Israel to be a
state in the first place.
– But even if one state does not recognise another, it may recognise a government and bring a claim
against it. Arab nations recognise the Israeli government and bring a claim against it whenever an
issue arises.

 Types of recognition
a. De facto and de jure recognition.
The distinction between de jure and de facto recognition occurs exclusively in the context of recognition
of governments; there is no such thing as a de facto state. The distinction depends on the intention of the
government concerned and the general context of fact and law.
– De facto recognition.
 A statement that a government is recognised as the ‘de facto’ government of a state may involve
a purely factual / political judgement. On the facts, if all the conditions have been satisfied,
recognition may be given. However, whether or not such recognition is permanent is a question
that is yet to be determined.
 It implies that there is some doubt as to the long-term viability of the government in question.
 De facto recognition does not, of itself, include the exchange of diplomatic relations.
 It involves a hesitant assessment of a situation, an attitude of ‘wait and see’, to be followed by de
jure recognition when the doubts are sufficiently overcome to extend formal acceptance . For
instance, the United Kingdom recognised the Soviet government de facto in 1921 and de jure in
1924.
 In civil wars, the distinction between de facto and de jure recognition is sometimes used to
illustrate the variance between legal and factual sovereignty. For instance, during the Spanish
Civil War, the UK, while recognising the Republican government as the de jure government,
extended de facto recognition to the forces under General Franco as they gradually took over the
country.

– De jure recognition.
 It has a legal basis.
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  It usually follows where the recognising state accepts that the effective control displayed by the
government is permanent and firmly rooted and there are no legal reasons detracting from this.
 Before 1980, the UK gave recognition to both states and governments. The Cambodian
government was given de jure recognition. However, the UK realised that if recognition was
given to a government, it would have to be given again and again, as and when the regime
changed. After 1980, it adopted a policy of giving de jure recognition to states only.
 In 2015, there was a motion in the UK Parliament to give recognition to Palestine. However, it
was concluded that recognition could only be given by the Executive and that the Judiciary did
not have a say in the matter.
 Only a government recognised de jure may enter a claim to property located in the recognising
state. In Hallie Selassie v. Cable and Wires Ltd. (1939), it was held that if you have de jure
recognition, you can be involved in property disputes. The recognising state can bring claims
against the recognised state for any property in the recognised state. The state can be held legally
liable for its actions. In case of de facto recognition, no such claims can arise.

b. Express and implied recognition.

– Recognition itself need not be express (i.e., in the form of an open, unambiguous and formal
communication), but may be implied in certain circumstances. This is because recognition is founded
upon the will and intent of the state that is extending the recognition.
– Express recognition may be in the form of a statement from the government. For instance, the US
may declare that it recognises state ‘X’.
– A state may also impliedly recognise another by lending support to a nation’s claim for statehood by
voting in its favour at the UN, and by entering into bilateral treaties and MOUs with it, among other
means. The US, for instance, regarded its vote in favour of UN membership for Macedonia as
amounting to recognition of that entity as a state.

c. Conditional recognition.
– This refers to the practice of making the recognition subject to fulfilment of certain conditions
– One well-known instance of this approach was the Litvinov Agreement of 1933 whereby the United
States recognised the Soviet government (the US gave de facto recognition to the USSR in 1924)
upon the latter undertaking:
 To avoid acts prejudicial to the internal security of the USA; and
 To come to a settlement of various financial claims.
Finally, this recognition was given in 1927.
– Article 6 of the Montevideo Convention suggests that recognition has to be unconditional. However,
the Convention had only 60 parties by 2008, with many major powers being absent. The provision of
the Convention goes against the notion of sovereignty; quid pro quo is not new to international
relations and states may seek something in exchange for recognition.

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 d. Collective recognition.
– This would amount to recognition by means of an international decision, whether by an international
organisation or not. It may take the form of a joint declaration, or an invitation to a new state to
become a party to a multilateral treaty of a political character such as a peace treaty.
– The idea has been discussed particularly since the foundation of the League of Nations and was re-
emphasised with the establishment of the United Nations.
– Admission of members to the United Nations is evidence of statehood. Since the UN is a collection of
all countries, implied recognition of all is assumed. However, there is no law requiring a non-
recognising state (that did not vote in favour of the entity claiming statehood) to enter into optional
bilateral relations with other members.
– Thus, the notion of collective recognition has become more or less redundant.

WITHDRAWAL OF RECOGNITION
 Recognition is a discretionary act of a sovereign and can be revoked.
 While Article 6 of the Montevideo Convention states that recognition is irrevocable, in theory, it is revocable
since it is a discretionary act. Practically, however, countries do not resort to withdrawal unless it is the only
option left.
 This is more easily achieved with respect to de facto recognition, as that is by its nature a cautious and
temporary assessment of a particular situation. Where a de facto government loses the effective control it once
exercised, the reason for recognition disappears and it may be revoked. It is in general a preliminary acceptance
of political realities and may be withdrawn in accordance with a change in political factors.
 De jure recognition, on the other hand, is intended to be more of a definitive step and is more difficult to
withdraw. Where a government recognised de jure has been overthrown, a new situation arises and the question
of a new government will have to be faced. In such instances, withdrawal of recognition of the previous
administration is assumed and does not have to be expressly stated.
 Withdrawal of recognition in other circumstances is not a very general occurrence, but happens in exceptional
conditions.
– The UK recognised the Italian conquest of Ethiopia de facto in 1936 and de jure two years later. However,
it withdrew recognition in 1940, with the intensification of fighting and dispatch of military aid.
– The 1979 recognition of the People’s Republic of China as the sole legal government of China entailed the
withdrawal of recognition of the Taiwan. While previously, the US recognised a separate Taiwanese
government, such recognition ceased in 1979.

NON-RECOGNITION
 Non-recognition exists when a factual situation is not recognised because of strong reservations as to the
morality or legality of the actions that have been adopted in order to bring about the factual situation.
 It is a doctrine that has also been reinforced by the principle that legal rights cannot derive from an illegal
situation (ex injuria jus non oritur).

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 This approach was particularly stimulated by the Japanese invasion of Manchuria in 1931.
– The US Secretary of State (Henry Stimson) declared in 1932 that the illegal invasion would not be
recognised as it was contrary to the 1928 Pact of Paris (the Kellogg–Briand Pact) which had outlawed war
as an instrument of national policy.
– The doctrine of not recognising any situation, treaty or agreement brought about by non-legal means was
named the Stimson doctrine after the American Secretary of State who put it forward.
– It was reinforced not long afterwards by a resolution of the Assembly of the League of Nations stressing
that League members should not recognise any situation, treaty or agreement brought about by means
contrary to the League’s Covenant or the Pact of Paris.
– The principle of non-aggression has been codified in the UN Charter and is now a jus cogens norm.
– If an aggressor country is recognised, it will be a direct violation of Article 2(4) of the UN Charter, which
prohibits the use of force.

 The UNSC can also pass a resolution or a mandatory directive asking states to not recognise a particular entity.
This is done in very rare and specific situations, where gross violations have been committed that threaten the
entire mechanism. Three instances of this can be seen.
a. Resolution No. 216 (1965)
– It was passed with respect to non-recognition of the unilateral declaration of independence of
Rhodesia (now Zimbabwe).
– In Rhodesia, three factions were fighting and had control over three different territories. The entire
territory of Rhodesia was formed only when one of the factions attacked the other. The attack was
without cause and / or provocation.
– Such conduct violated Article 2(4) of the UN Charter. A UNSC resolution was passed directing all
nations to not recognise Rhodesia as a sovereign state.

b. Resolution No. 541 (1983)

– It was passed with respect to non-recognition of the proposed Turkish-Cypriot state.
– Cypriot existed as a state. There was a rebel group in the north, that was supported by the Turkish
government. It reached a point where they had so much power that they exercised effective control
over the northern part of Cyprus. The Cypriot government had no control there.
– Northern Cyprus separated itself from the rest of the Cypriot state. The Turkish then government
proposed a new Turkish-Cypriot state.
– The UNSC declared that had Northern Cyprus declared itself a state without Turkish interference, it
could have been declared so. However, the proposed entity did not get the recognition it desired
because it was Turkey’s involvement that led to such a situation. The circumstances that had unfolded
were not in consonance with international law.

c. Advisory Opinion on the Illegal Presence of South African in Namibia.

– In this case, the concept of jus cogens norms and matters of sovereignty were discussed.
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 – Namibia and South Africa were both part of British territory. After independence, South Africa
became a new country, but that was not the case with Namibia.
– South Africa attacked Namibia and gained full control over it. Such control was, however, never
recognised by Namibia. They argued that Namibia’s existence as a state should not be contingent on
South Africa’s conduct, and that the South African control over it was illegal; existence of a state is
not per se dependent on recognition.
– The question before the Court was whether or not the occupation was valid.
– Illegal occupation is a violation of territorial sovereignty, in contradiction to Article 2(4) of the UN
Charter. Even if Namibia is not a UN member, South Africa is, and is hence bound by its rules.
Further, non-aggression had attained the status of a jus cogens norm and could not be derogated from.
– The Court held that the occupation was illegal. South Africa was trying to illegally increase its
territorial limits. The UNSC also passed a resolution to that effect.
– Namibia’s status was consequently upgraded from that of an observer to that of a member.
[Whenever membership is accorded to a nation, it is assumed that all nations recognise it – Article 4].
This was a rare instance of collective recognition.

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 TOPIC 8: TERRITORY

INTRODUCTION
 Territory is essential to the idea of sovereignty. Apart from functional elements, there is a geographical
understanding attached to it. It is an objective parameter and can be measured.
 Territory is the starting point.
– The people inhabiting the territory constitute ‘population’.
– The control exercised over the people is ‘effective control’.
– Decisions concerning territory that determine ‘independence’ and ‘sovereignty’ are taken.

TYPES OF TERRITORY
1. Territorial sovereignty. It is the territory over which complete sovereignty can be exercised. It included the
airspace and the territorial waters.
2. Res nullis. Areas that are res nullis are unclaimed territories. No country has exercised sovereign rights over
them, and they can be claimed by establishment of effective control. These territories can thus be acceded to
states.
3. Res communis. Areas that are res communis are those over which no sovereignty exists. The difference arises
with respect to the claim aspect. You cannot make such territories part of your state. They belong to the world
at large. Examples include Antarctica, the high seas and outer space.
4. Territory under condominium.
– This refers to a shared claim / sovereignty over a particular territory.
– It exists in situations where a particular territory cannot be divided (like rivers or glaciers). These
problems often arise with glaciers, where the river starts and the glacier is bypassing the territory of two
specific countries. Then, once the water melts and flows through both simultaneously, you cannot divide
it.
– El Salvador, Honduras and Nicaragua enjoy shared claim over the Gulf of Fonseca and of the territorial
sea outside its mouth. The three nations were previously British territories. After they gained
independence, ambiguity existed as to who had claim over the Gulf, and the ICJ decided that is was a
historical landmark and that all the three countries would have shared sovereignty over it.
– All three nations in dispute were highland countries that were intricately connected. Disputes concerning
sovereignty could not be brought (such as boundary disputes), however, treaties allowing sharing of
territory could be entered into and disputes regarding violation of such rights and specific arrangements
between the countries could be brought.

TERRITORIAL SOVEREIGNTY
 A state has sovereignty over its territory, which includes its territorial waters and airspace. There are four
elements of territorial sovereignty. They are:

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 a. Jurisdiction. This is the legal extent of law within which control is exercised. Decisions are accordingly
taken with respect to rights and obligations.
b. Administration. It refers to the way the government works. It talks about legal authority. It is the
functional aspect of sovereignty. Administrative governance accords legal ownership. Law is not only
created (jurisdictional aspect), but also administered.
c. Ownership. The understanding of ownership is rooted in an understanding of property, proprietorship and
the notion of eminent domain. The entire territory, including the subsoil and the airspace, belongs to the
sovereign. Eminent domain refers to the ultimate ownership that is accorded to a nation by virtue of the
title it holds as the rightful sovereign. The concept of expropriation is also based on this aspect of
sovereignty.
d. Sovereign rights. Every right has some obligations attached to it (Hohfeld’s theory). ‘Sovereign rights’
and ‘sovereignty’ are not the same – the former is merely a facet of the latter. In the exclusive economic
zone, there is no sovereignty as territory is usually overlapping. Thus, the countries having overlapping
EEZs will not have sovereignty, but will have some sovereign rights.

 Sovereignty is nothing but a title. Previously, according to the classical international law theory, title was
understood with respect to ownership – the sovereign was the owner. The concept of territorial sovereignty was
based on the concept of proprietorship. This was rooted in the concept of eminent domain. Possession gave rise
to ownership, and ownership gave rise to territorial sovereignty. However, the idea that ownership was
equivalent to sovereignty was questioned. With every transaction where the ownership would change hands,
the sovereignty would also change hands. This was problematic.
 Subsequently, in 1928, there was a change in this understanding.
 Under the modern international law theory, sovereignty entails possession, as well as actual administration.
Any dispute that arises is checked on both parameters. Ownership is not equated with sovereignty.
Determination of title is now done on three accounts. This test was laid down in a case, and it was held that
three factors would be considered every time a dispute of sovereignty arose. The factors are – centrality of title,
inter-temporal laws and critical date.

CENTRALITY OF TITLE
 The understanding of title was very Europe-centric before WWII. This was due to the widespread practice of
colonialism. Then, it was understood that the entire geographical territory was the property of the country
controlling it. It was a very constricted understanding. The idea of territory was equated with the idea of
property. Consequently, sovereignty was equated with ownership. It was a very objective understanding. This
was the classical international law perspective.
 Situations also arose where a country exercised control, but such control was not effective. This gave rise to the
concept of ‘effective administration’, which was proof of executive control. (Note: Sovereignty has four
aspects – jurisdiction, administration, ownership and sovereign rights). Objective ownership as an element
existed before 1928 as well. Thus, effective administration was now understood to entail jurisdiction,
administration and sovereign rights (the subjective elements).
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 What are the possible permutations?
– First situation. Where both, objective and subjective elements, are satisfied. This is the ideal scenario, but
is impractical in the real world.
– Second situation. Where the objective element is satisfied by one sovereign nation, and the subjective
element is satisfied by a different sovereign nation.
– Third situation. Where the objective element is not clear and it is not possible to prove, beyond
reasonable doubt, that one particular nation exercises control. There is a lack of clarity, and the element is
not being satisfied. The only question that then remains to be determined then is: who is fulfilling the
subjective element?

The Case Concerning Frontier Dispute (Mali v. Burkina Faso) was the first case where the modern
international law understanding was applied.
a. The Court, in this case, carved out the three aforementioned scenarios. They said that the first situation did
not require explanation or interpretation.
b. In the second situation, the country proving the objective element will be said to have sovereignty; the
objective element will prevail. It applied the pre-1928 understanding of territorial sovereignty. In
subsequent cases, this has led to contradictions since the Court has gone on to emphasise ‘effective
control’, which the objective element alone does not prove. The doctrine of ‘uti possetis’ emerged.
[discussed below]
c. In the third situation, the subjective element becomes the determinant factor.

 The ‘uti possetis’ doctrine is nothing but a mere presumption that came up at the end of the colonial era.
There existed certain boundaries when colonialism ended (such as the Radcliffe line between India and
Pakistan). This doctrine presumes that the boundaries that have been decided during the colonisation period
have to be followed in frontier disputes. The doctrine was applied in the Case Concerning Pedra Branca
(Malaysia v. Singapore) (2007)
– In the strait between Malaysia and Singapore, there were three islets (note: many small islands, called
islets, together formed an archipelago) – South Ledge, Middle Rocks and Pedra Branca.
– The islets were near the entry point into Singapore. Due to this proximity, Singapore exercised effective
control over the islets.
– Malaysia, before coming into existence as a sovereign country, was under the control of the Sultanate of
Johar, its predecessor.
– Malaysia’s evidence with respect to South Ledge and Pedra Branca was not accepted by the Court. The
only islet in dispute was Middle Rocks, which was also previously under the control of the Sultan.
– Singapore argued that it had effective control over the islet , since its laws were applicable there. It also
argued that the three islets together formed one single geographical entity, and could not be separated.
(this is actually a very compelling argument).
– Malaysia argued that since Middle Rocks was previously a part of the Sultanate of Johar, it should be
deemed to be its part, and not Singapore’s.
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 – The Court applied the doctrine of uti possetis and ruled in favour of Malaysia on this point.

INTER-TEMPORAL LAWS
 They suggest that if any evidence is being considered, it must not be seen from the perspective of the legal
regime that persists at the time of dispute. Rather, they must be evaluated from the perspective of the time
when the evidences / documents came into existence.
 A treaty that was entered into in 1930 must be evaluated not from the 2019 perspective, but from the 1930
perspective.
 For instance, in the Pedra Branea case [discussed above], Malaysia submitted documentary evidence from
1928.
– Such evidence must be evaluated from the perspective of the regime that existed when the evidence came
into existence, i.e., 1928.
– If we evaluate the document from the 2007 regime, the document may not be deemed to be valid. If the
validity is negated, Malaysia will be left with no evidence of ownership and will not be able to prove it.
– Thus, Singapore will be said to have sovereignty, since the objective element is not clear [third situation].
– This is why it is important to evaluate evidence from the point of view of the regime that persisted when
the evidence came into being.

CRITICAL DATE
[not discussed in class as yet]

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