International Law

10 November 2020 08:56
INTERN
ATIONA
L LAW
International Law Page 1

TEST 1
01 August 2020 17:18
• Question Asked in the Test - The ICJ refused to decide the case related to Namibia stating:
‘We are not unmindful of, nor are we insensible to, the various considerations of a non-
judicial character, social, humanitarian and other... but these are matters for the political
rather than for the legal arena. They cannot be allowed to deflect us from our duty of reaching
a conclusion strictly on the basis of what we believe to be the correct legal view.’
(i) Would you agree with the rationale?
(ii) Has the court altered its position on standing; if so, how?

Definition//International Law
01 July 2020 11:47
• Brownlee and Malcom Shaw and Openheim are nice books

• Subsets of International law like Human rights and humanitarian law, space law etcetera are
not going to be covered by our course so these books could be read for them.
• Landmark cases in international law by borgye is a nice book too. We might not have good
time to delve into cases so it is good if we read from this book.
• Professor Chimni and Upendra Baxi - stelwards of India (and Third World Approaches to
International Law (TWAIL) scholarship)
• Sir suggests that we know exactly what and who we are reading - read up on every scholar.
• Readings : Teaching og International Law in India : Some utopian proposals by Upendra
Baxi
States that one subject called international law has ceased to exists.
• Some theoritical fun:-

Theories Liberalism/ Realism / Radicalism/ Constructivism
Neoliberal Neorealism Dependency
Institutio nalism Theory
Broad Key source of order Acknowledges that Skeptical Law reflects
View of I in the International international law because origins changing norms;
Law system; states creates of law are in shapes state
comply because law some order, but Western expectations
ensures order stresses capitalist and behavior
that states comply tradition;
only international
when it is in their law only
self-interest; states reaffirms
prefer self-help claims of the
powerful
Definitions of International Law
• Oppenheim - early 1800-1900 : "international law is the name of the body of customary
and treaty rules which are considered legally binding by civilized states in their intercourse
with each other." Some crucial parts of the definition:-
a. customary and treaty :These were the only two sources for him that time - now
are sources have amplified - we have judgments and all.
i. His definitoin includes elements of ‘hard’ law; he did not include ideas like
general principles followed by states, nor did he accept the fact that
International Law could also come from writings of authors or decisions of
courts.
ii. Unrelatedly, soft law would include things like Resolutions and
Declarations of the UN General Assembly, statements, principles, code of
practice etc.; often found as part of framework treaties, Action plans and
Other non-treaty obligations. This hard law-soft law distinction would also
be in a way found in core TWAIL expectations and peripheral TWAIL
expectations(in the Baxi reading)
b. Rules: reliance on rules is a positivistic influence - these are legally not

morally/ethically binding. (This will be important when we see why legal binding
is important)

c. binding by civilized states : Civilised? Then there are uncivilised nations too?
Who are they? International law considered their states are very limited. - third
world? - "Any country that is not willing to or able to comply/respect treaties can
be termed as uncivilised today," R.P Anand says. Even today, article 38 says that
sources of international law are what the 'civilised' nations say it is, therefore the
need to comment RP Anand made, coming from twail scholarship.)
• Realists influence too so international law moving past straightjacket of positivism -

exclusive positivism and inclusive positivism and further work by Dworkin(he belongs to a
hybrid category between positivism and naturalism; as he relies on both the need of
rules(positivism) and moral principles (naturalism))
• Now let us compare this with definition given at end of 20th century - JG starke (post
positivist definition)- in his definition, the subjects of international law have amplified(to
include State, Individual institutions or institutionalized organisations, Individuals, Non-state
entities)
“International Law is that body of law which is composed for its greater parts of the
principles and rules of conduct which (i) States feel themselves bound to observe and
therefore do commonly observe in their relationship with each other, and which includes
also rules of law relating to the functioning of international institutions and organizations,
their relationship with each other, and their relationship with States and individuals.
Certain rules relating to individuals and non-State entities, so far as such rights and duties
of individuals and non-State entities are a concern of International community”
• Sources - two types :
1. Formal sources of international law - in article 38 of statute of international court of
justice - four sources mentioned
2. Other sources - jus cogens (is the highest source of international law if there were a
heirarchy) etcetera
• Random Information : Customary rules and treaties mentioned in Oppenheim's definition

primarily work on the idea of consent. To be subjected to a treaty, a state has to give consent
twice - once while signing and once while ratifying the treat. On the other hand, for
customary rules, consent works in a different way. A customary rule will not apply to a state
if it actively objects to it from the very beginning [ though remember that certain type of
customary rules, particulary, jus cogens cannot be consented out of. They have to be
followed, consent or not]

Dixon//RELEVANCE
29 July 2020 11:01
• Reading : Dixon - Relevance of International Law

• International law is a convinience term for a complex web of domestic rules/actors/factors that shape and in turn are shaped by
social, political, economic and cultural practices of the global and domestic society.
• Three basic questions may be raised regarding this thing called 'I law'
1. When International Law is violated, there is no real legal response from other nations. So, where is the relevance?
2. No executive body to enforce I law so who will make sure that it stays useful and valid?
3. Every state is a sovereign state, and states have to consent (can International Law circumscribe the will of nations?)
• Section One : Relevance : Answer to Question One

1. International law basically manages states and other behaviours in international community; to make different
international stuff possible
2. H Waldock's idea : International Law a servicable instrument to carry international affairs

a. International laws are often overlooked because they are followed regularly in arenas that are outside the general
public's interest; layman only hears about it when there are "flagrant violations" of it or when there are legal voids :
In essence : "You only miss the sun when it starts to snow" (let her go...let her go)
b. Central aim of states for i law was of a servicable instrument for "enabling states to carry on their day-to-day
intercourse along orderly and predictable lines." This aim has largely been served, so ya, I law is relevant
Ex: Anything relating to flights is governed by the Chicago convention and its subsequent treaties, and is governed
by the International Council on Aviation created by the Chicago convention.
(thought it might not be completely fulfillin the goals of promoting welfare or maintaining global peace, Waldock
does not consider them primary motivation of state for i law - Though i disagree. But anyway, even if the goals are
not being fulfilled, it is relevant to the extent of showing that something wrong is happening and starting possible
deliberations to correct it- these changes in rules would be hoped to be coherent and consistent; as reinforced by
international order)
3. L Henkin's idea : International Law to curtail absolute(reckless freedom); inspire general compliance
a. International rules act as a susbtantial limitation on the absolute freedom of states to act however they want;
webbing a series of obligations and rights towards each other.
b. While norms cannot guarantee observence/performance similar to the degree of domestic law enforcements, they
certainly pose a question to states before they move to judge thier action on basis of : reasonability, requirment and
results(or consequences which might follow).
c. Thus these internal and external forces inspire a general compliance to set rules: thus become relevant
4. R Jennings and A Watts : International Law providing a general framework of rules etc
a. Public international law = juxtaposition of states and Private international law = juxtaposition of legal systems
(which includes domestic laws that states make to judge violations by private persons of other states)
b. It is argued that even for private international law to be enforced, a system of obligations and rights have to be
made accessible by public international law
c. Again, adding to Henkin's idea : the power of public international law is not in that it is a well defined set of clear,
specific rules to be adjudged by similarly well definied set of heirarchical authorities. Instead, it is in the fact that
every international situtaion can be subject to regulation/judgment as a matter of law by applying specific rules that
exist or by deriving new ones.
d. Hence freedom in the global village is not about assertion of unlimited will but about freedom that is derived
from/protected by and accorded by legal rules; hence ensuring that it is a global village, not a global jungle where
the most powerful predators rule (like economically sound states pressing down upon weaker states); hence relevant
5. S Scott : International Law sustaining an international political order

a. I law not only integral to international distribution of power but also sustains the international political order; coz
states either believe in ideology of ilaw or they do not and this helps resolve international political issues; hence
relevant
6. T Bingham : International Law bringing a semblance of punishment

a. States two deficiences of i law - one, that some states try to bend rules to meet the perceived exigencies of political

a. States two deficiences of i law - one, that some states try to bend rules to meet the perceived exigencies of political
situations (bending as per their requirement) and two, the consensual nature of juridiction of ICJ (that both parties
should acceed to jurisdiction of ICJ?)
b. But Bingham states that in these definiciences come a point proving that while there might not be 'punishments' per
se for above behaviour, the reputation/influence/standing of that state falls while would make them and other not do
what they did again in future: sort of deterrence.
c. States if problems have to solved - rules need to be internationally agreed//implemented//enforced
7. Punishments : I law has some tools that it can use as punishment or deterrence mechanism : like cessation,
compensation or application of punishment post facto
8. Imputation of acts of citizens to States : ex : Italian Marines case - their actions created a liability for their country.
Another example: Canadian domestic law attaches to a US citizen when they cross the border (example of going to
Alaska for hunting - many people try to drive across with guns, but this is not permitted in Canada)
Hence, to sum up, international law is relevant as (1) it is an instrument to help day-to-day international intercourse and
point out problems in it (2) inspire general compliance to rules (3) curtail absolute freedom of act however states want (4)
help resolve international political issues (5) deterr wrong behaviour (6) has a set of punishment(though limited) and (7)
can impute liability to state.
• Answer to Question Two : No exec body to enforce law

a. Habermas - A large part of society has followed laws because that's the way they have been - cultural standpoint.
Eg: Hindu laws, or any other personal laws; executive body not necessarily required
b. The lack of an executive does not mean that the laws are not followed. Fear of punishment by a body doesn't mean
that the laws are not followed. Fear of punishment by a body is not the only propeller for the observance of laws.
c. Theories to argue
i. "Rational actor theory" - International law is followed because it is in the best interests of the states.
ii. "Reputational theory" - your reputation as a nation that follows International Law gets tarnished; maybe you
might end up not being a "civilized state" anymore heh
d. There IS an executive - To some extent, there is an executive presence in international law

i. Security Council : powers to maintain and investigate, measures of punishment(economic, severance of
diplomatic ties etc and finally use action by air, land and water to maintain peace) in international law given
to Security Council. Under Art 24(1) - SC has to maintain International peace and security, under Art 34 - SC
can Investigate, under Art 36 - propose measures, under Art 41 - can take measures (sanctions); can use
military power
ii. FAO or ILO or other UN organisations - departments/ministries ke analogous to ministry of domestic
systems : But again these are mere analogies, not everything is same in the international arena as in domestic
system and that is not a testament to weakness of I law
iii. In 1992 Rio Summit for environment UNFCC was formed. UNFCC sees countries as: Annex A countries as
Countries capable of battling pollution So, they had to follow strict rules and Non-Annex A countries have to
follow rules to the best of their capability
• Answer to Question Three : Can international circumscribe the will of nations? : it is worth noting that while the domestic
system is a vertical system of heirarchies and enforcement mechanism, international system largely remains horizontal system
(where something can only be imposed when consented upon - generally but there is jus cogens and similar stuff: where
consent(or its absence) might be overridden easily. Further there are moral arguments for following an international legal
order, as discussed in dworkin which makes it not so easy to just flounder laws you do not consent to).
a. Nicargua example : Military and Paramilitary activities against Nicaragua - heard by ICJ
i. Nicaragua - country in Latin America - overthrew the government and the new government (a rebel group)
was supported by the USA. But the rebel group was supporting two other countries, and the governments in
these countries were favored by the USA.
ii. When Nicaragua approached the ICJ, the USA said that on the basis of the Vandenberg Reservation (
Due to a United States’ multilateral treaty reservation, (the Vandenberg reservation), the Court could not rely
on the United Nations Charter; which pulls every other UN member in) USA said that ICJ had no
jurisdiction.) The Vandenberg Reservation protected the USA from armed forces. ICJ said that prior to the
UN Charter, customary laws existed that made armed attack illegal.
iii. USA thought that without their consent (as they were a sovereign nation) ICJ had no jurisdiction but with the
novel interpretation of International Law the ICJ was able to give a judgement; Shows that countries ARE
held liable, whether or not there is enforcement

held liable, whether or not there is enforcement
b. Test of Effective Control (effective control test was articulated in the ICJ’s Nicaragua judgment and offers a fairly
robust set of standards for attributing the actions of an armed group to a particular state, essentially requiring that
the armed units are operating on the instruction, or at the direction of, the foreign state. In these circumstances, the
actions of the armed group can be attributed to the foreign state.) - Nicaragua - US would be held guilty only for
acts over which it had effective control
c. Bosnian Genocide case - made effective control the current law
d. Overall Control Test - Tadic v Prosecutor - ICTY in Tadic declined to follow the ICJ’s Effective Control Test, and
instead formulated and applied the broader Overall Control Test. The test was originally designed to determine in
Tadic whether the armed conflict was an international armed conflict or a non-international armed conflict. If the
conduct was attributable to a foreign state, then the armed conflict was international in nature. Subsequently,
Cassese argued (correctly) that the test was, in fact, a general test for state responsibility. The test allowed for state
responsibility in situations where a foreign power helped to coordinate the actions of an organized and
hierarchically structured armed group by equipping, financing, or training the paramilitary force)
e. Test of Use of Force - Guilty for acts that USA had committed
f. Context is as important as rules - not acknowledging political-social context openly - choices are still made. So,
influence of political considerations exists, however, reasons for this are not given by the acknowledgement of such
factors.
g. Instead, account for the political-social factors with "reason", make the judgments more open and transparent.
Make the choice systematically and openly (same context arises, same decision should be applied).
• Section Two : The international community and international law
a. A Roberts and B Kingsbury : On UN's role in international society; stating that there is somewhat semblance of
centrality in the i arena - United Nations
i. Have six organs: which have further parts. UN also has other bodies set up for specific taks like UNESCO. It
is all in the module (clat heh)
ii. Point is, UN's performance is hard to be evaluated without evaluating the performance of its members are
essentially, they constitute and control this body called UN. BUT, UN is more that just the aggregate of its
members; it has come to embody life and ethos of its own. An image of its own. And when its member states
flounder, UN should intervene for what is stands - international justice and peace and fairness; take possible
measures against violating states. And its role seperate from its constituting states is up for evaluation :)
iii. UN articulating - universal society of states and cosmopolitan universality of humakind.
b. K Aman : In context of the Millenium Declaration, Aman charts out our map towards Development, Security and
Human rights for all
i. Sheer imbalance of power in the world is a source of instability. Even the most powerful states feel vulnerable
at a powerful, rouge attack : ex 9/11 taliban attacks brought down USA. Further violence of other kinds - like
raged by corona right now also tears apart countries.
ii. Global wealth is growing but becoming more and more unevenly distributed
iii. Declining public confidence in UN itself. Iran war mein one faction said UN failed to enforce its own
resolutions while other said UN failed to avoid the must avoidable war. But this means public has certain
expectations from UN; important central body.
iv. Development + security + respect for human rights = internlinked
v. Since threats and challenges are largely interconnected - ex: taliban raging violence in USA and also in
Afghanistan - their should be broad, deep, sustained global co.op among states.
vi. Need agile and effective regional and international 'intergovernmental' institutions to mobilize and coordinate
collective action.
• Chanelling the "courage to fulfil responsibilities in an admittedly imperfect world" - FDR. Summing up, international
community is getting influenced and influencing international law daily; thus it becomes a relevant area of study.
• Extra Content
a. Realism - late 1800s
i. Realists like Roscoe Pound, Wendell Homes, etc.
ii. They say a judge does not just apply rules, he deals with:
1) Legal vacuum - where a law is not present
2) Legal ambiguity
3) In such cases, judges interpret and propound principles, which also function as precedent in common
law systems. Eg: Vishakha guidelines

b. HLA Hart, concept of law:
i. Inclusive legal positivism - understand decision making like a candle frame or an eclipse where there is an
umbra and a penumbra (the centre part which we are in or can see and the outer showdy part not visible to us)
1) Umbra/Golden part which we can see - these are rules that are applicable in most situations
2) Penumbra - principles being formed by the judges.
c. If International Law is not the mere application of neutral rules but requires contextual choices to be made, then do
we really have something? Can any ends be justified? - Higgins answers this in the negative. Rules continue to play
a large role. Choices will need to be made in case there is an ambiguity/absurdity/vacuum in the rules of I law.
i. Eg: Iraq invasion Rules against interference with internal affairs/ against armed attacks will still apply.
ii. Nicaragua - the same rule would apply but to obviate the USA from going scott-free (due to Vandenberg) they
"chose" to go with customary International Law.
iii. Bingham "calls out" USA and UK's acts in Iraq - not just any act can be justified with reference to a choice.

Higgins//Nature
29 July 2020 12:41
• Reading : Higgins : Nature of International Law

• Rosalyn begins by calling international law the whole normative system and not just a body
of rules(but a legal process). This normative system has rules, some are obligatory and even
carry punishment.
• Higgins : International Law is a normative order : i.e.; makes possible that degree of order
that allows to maximize common good and avoid chaos.
• Two points describe the nature of international law

a. Non-binary nature of I law : It is not just about resolving disputes. Rather, it seeks
to provide an operational system to secure values like security, freedom, the
provision of sufficient material goods.
i. Infact, if a system works well, then disputes are in large part avoided. And if
disputes do arise, there should be mechanisms to solve it.
b. Similarity with domestic law : In essence, international law is similar to domestic
law : to maintain social and legal order.
i. Though they differ in the sense that domestic law operates in a vertical legal
order, and international law in a horizontal legal order.
• What is International Law?

a. Is it just a body of rules?
i. Rosalyn has constructed "rules" as "accumulated past decisions" (this is a
positivistic construction) which cannot be applied as it is today as the
articulated context and our present problems have evolved. Thus
applicability wise, if i law is just past rules, it is bound to be disregarded.
ii. Instead, she proposes that it is a dynamic legal decision making process(and
if its is a process, it will definitely involve stages of evolution; therefore,
Law has choice to move ahead and evolve). I quote, " the notion of law is
not merely the impartial application of rules. International law is the entire
decision-making process, and not just the reference to the trend of past
decisions which are termed ‘rules’."
iii. Ex: The fact that law is a process can be seen in how our understanding of
subject of international law (from being merely and concretely legal to also
involving social, political, economical and cultural factors as seen in
aftermath of South West Africa case) has evolved. Further example could be
how International environmental law has evolved. The initial understanding
in the 16th century was that nature will replete itself no matter how much one
tries to harness for it. Hence fishing in open seas was unlimited. In the
1940s, the polluter pays principle came into existence. Furthermore, in the
1970s, the precautionary principle was introduced because people realized
that industries were more than happy to pay and pollute. In the 1990s, the
concept of EIA was introduced in order to gauge how much precaution
needs to be taken. In the 2000s, the concept of continuing EIAs was further
introduced because an industry set in 2000, its impact in 2016 could not be
understood via an EIA conducted in 2000. This evolution of the
understanding of International Environmental Law explains how the law has
been a process.
Another example could be how constitutionalism is a process in India : The
constitution is called a “living document”. This is because it is constantly
being created, and is continually evolving.

iv. She states that judges and legal advisors do not simply have to 'find and
apply' rules impartially but instead, (quotes Sir Hersh Lauterpacht) that a
judge instead makes choices between opposite claims on the basis of their
legal merit (the choice is then explained by rules?)
v. This thereby leads us to the idea of “choice”. I.e.; that choices are being
made at all points of time. Even the act of refraining from taking a choice, is
a choice of not deciding to act
vi. Moves on to diss two beliefs behind treating i law as mere rules:-
1) Belief One - That if International Law is regarded as more than mere
rules, it might be confused with an exercise of power or social or
humanitarian factors.
 Rosalyn states that law is not just authority, lacking influence of
forces of power or control.
 The assumption (that "i law as mere impartial rules" makes) that
law is concerned with authority alone and not power or control is
flawed. Instead,
i) Yes, law is about authority, but not just authority = judicial
rules or precedents but also as authority = jurisdiction,
competency
ii) Authority then is interlocked with power and control as
authority is mere proclaimations; they need to be enforced
using power and control
2) Belief Two - That if I law is not just neutral rules, biases and partiality
(of judges) will creep into decisions.
 This was reflected in the South African Cases.
 South and South West Africa (Namibia today - colony of
Germany which lost in WWI and were taken as madates of the
victors under League of Nations)
Then WWII happenned then UN came and asked that these
mandates were converted into Trust ; and south africa was asked
to relinquish control of it but it refused saying it is under League
of Nations: One of the most litigated land law - 1966 cases.
Quote of Justice Fitz and spender relevant here - these are
political situtation and we are giving only legal views - so when
Ethiopia and Liberia(?!)- brought the case against south africa in
ICJ saying apartheid is happening in South West Africa at the
hand of South Africa. But these judges said nah, we cannot do
anything about apartheid, we are giving mere legal review(no
interference) - Largely positivistic thinking but see how there are
biases(prpean) they all have ; so it is not that a judge is a non
biased and objective like positivists believe they are.
Flag of positivism, neutrality is infact a choice - Higgins says.
She says judges make choices and its fine but they should at least
give good reasons. Soon, ICJ ke against people(of africa, asian
countries) said that these courts are centred around european law;
biased - and the world largely supported coz both the american
block and the soviet block were trying to get into the good books
of these resource rich african asian countries. [After the decision
came out, the 3rd world and the Non-Aligned Movement (NAM),
called the ICJ as Europe-Centric court and white man centric.]
 Judges Fitzmaurice and Spender stated that, "We are not

unmindful of, nor are we insensible to considerations of non-
judicial character, social, humanitarian and other . . . but these

judicial character, social, humanitarian and other . . . but these
are matters for the political rather than for the legal arena. They
cannot be allowed to deflect us from our duty of reaching a
conclusion strictly on the basis of what we believe to be the
correct legal view". Justice is divorced from law in positivism.
Positivist philosophy argues that law and power are divorced.
 After four years, a different choice was made by the court:

Barcelona Traction Case, 1970 : made an obiter dicta in para
33/34 on locus standi = certain class of cases are so important
that any country can bring in any case in ICJ. By the dicta of
1970 they corrected the 1966 judgment that did not allow
Ethiopia and Libya to bring in the case on basis of locus standi.
Basically 1970 opened ICJ a bit more to sufferings of the globe
and diluted the rigour of european restraints on locus standi.
James Crawford commented on this saying that the only reason

the obiter in 1970 exists is because that there was a change in the
stance of the ICJ was due to the pushback it faced from the
earlier judgement in 1966.
3) Higgins says that they came from a very hardcore positivist

understanding/perspective. Positivist judges are appliers of law and
don’t make ‘choices’ but Higgins then decides to question them:
 Aren’t they making a choice?
 When they say they won’t interfere, isn’t that a choice?
 When you look at the judges, they come largely from a European
background. Don’t they have implicit biases that they get from
their own political and legal system? (eg: “sovereignty” concept
that Europe supported so SA’s apartheid cannot be challenged)
• The essence of this view was that international law can best perform its service to the
community exactly by distancing itself from social policy. Further, it was the positivist
understanding that by sticking to the word of the law (judges becoming mere appliers of the
law, and not interpreters), bias towards any side is avoided, and neutrality is maintained;
Positivists tried to keep “power” out of the discourse
• Hohfeldian analysis - Right has a corresponding duty - If there is a right on one party, it
implies that there is a limitation on some other party which talks about the relations between
various jural postulates, has the idea of power implicit in it. You cannot have any legal
system that is void of power, and entirely unbiased
• Rosalyn spectacularly argues against it that the choice to distance onself (and be neutral) in
itself in not a neutral choice, free from political and social consequence. "A refusal to
acknowledge political and social factors cannot keep law ‘neutral’, for even such a refusal is
not without political and social consequence. There is no avoiding the essential relationship
between law and politics". This could mean that when a judge refuses to acknowlege say,
racism, he might be led on by his own racist beliefs or something. Further, his denial of
racism will only perpetuate racism which will eventually lead to more violations, case in
courts etcetera; then how was efficient legal justice done?
• Rosalyn argues that instead, policy factors should be openly, systematically considered and
weighed (subject to public scrutiny) - though, I think 'weighing' them would also involve
some sort of biased choice making, no?
• So if international law is not mere rules but application of norms and process of choices
being made - they can it basically move just about everywhere? - said only in case of

being made - they can it basically move just about everywhere? - said only in case of
ambiguity(when diff parties claim diff rules are applicable), vaccum or absurdity that choices
come in otherwise rules largely govern stuff in I law.
Ex: Nicaragua Case: Could I-Law circumscribe the will of the states; In this case, the ICJ was
able to create a jurisdiction for itself, and then take a decision. This is an example of a choice
being made (Of choosing to go through the route of CIL; due to the absurdity of us getting
away using Vandenberg reservation).
• Higgins Basically - Choices will be made and they have to be made openly and
systimatically(and rational) and they will be kept in check with rules.
• Other debates with I law too : Positivists argue that rules should be set by a sovereign
individual or a sovereign body of individuals (austin) which is missing in I law obviously to
which Kelson proposes a 'grundnorm'—the highest fundamental norm from which all others
derived their binding force - in place of a sovereign.
• So is I law just choosing between diff norms and all (the choosing itself might be biased)? Is
there no prospect of rationally choosing, for the common good? - These are reflected in
Koskenniemi's view who she dissed by saying, "Of course law cannot alone achieve justice.
The making of legal choices will not even contribute to justice if it purports totally to ignore
political and social contexts. To remain ‘legal’ is not to ignore everything that is not ‘rules’.
To remain ‘legal’ is to ensure that decisions are made by those authorized to do so, with
important guiding reliance on past decisions, and with available choices being made on the
basis of ommunity interests and for the promotion of common values."
• Then there are some little discussions as to why process based understanding is better than
rule based understanding- that the difference between lex lata (the law as it is or current law)
and lex ferenda (the law as might be) begins to disappear as we move from 'i law = rule' to 'i
law = process' approach. Let us suppose there is a void where I law does not say anything
about it. So for a rule centric positivist understanding, there is not lex lata (or current law) so
it is a dead end but for lex ferenda, there might be a process to correct this void/lacuna in law.
Treaties and Customs are rule based I law and everything else is process based.
• The law must be made more compatible with the wishes and desires of the society which is
the greater purpose of law.
• To whom does International Law Apply?

a. States in their relationship with each other
b. International organisation
c. Even to individuals directly ( ex: nazi officers being prosecuted for their conduct)
and indirectly (ex: when they are required to act under some state law against
other state)
• What is the Basis of Obligation of International Law? - She says consent is the basis (which
will be destoryed utterly in the next dworkin reading who states that morals are the basis of
international law - omg)
a. Austin positivits might argue that law should come from a sovereign with proper
sactions but I law got no sactions. Even non-positivists might feel the lack of
obligations, binding norms or compliance mechanisms. Thus two questions arise:-
i. Why is the normative system of I law binding?
ii. Why should states comply with norms of international law?
These are basically the same questions, to which consent (that it would be
binding) was the answer that was largely given. It might also be reciprocal
benefits of following law etc//not very important.

Dworkin//basis
29 July 2020 14:50
• Reading : Dworkin : Basis of International Law
• Theme of the reading:

1. First 15 page segment talks about why taking consent as a basis of international law is
not right
2. Next 15 talk about replacing consent with associative obligation (or morals) as basis of
international law
• Around five-six decades ago, I law was in a existential puddle. Today, while it is clear that
there is something like "international law," the question that "why certain rules and principles
set out in documents etc consitute a legal system?" still remains relevant - bcoz it is key to
understanding how we interpret these documents; which dworkin is going to answer with this
paper
• First, why did people doubt if there was any I law?

a. That era was of legal positivism : argued that a law is law when it exists when
some group or person creates it.
b. It was a debate amongst positivists too : Who creates law? :

i. For John Austin, it was the command of the uncommanded sovereign.
ii. H.L.A. (Herbert Lionel Adolphus) Hart on the other hand, refuted that
command of uncommanded sov is required (ex: US legal system has no
absolute sovereign). What hart instead argued that when bulk of officials
recognize certain rules as obligations that are to be followed, it becomes law.
These rules might be of two types - Primary Rules (or duty/right/obligation
imposing rules - that guide the conduct of individuals and other legal
persons - ex: duty not to cheat while making contracts under contracts act)
and Secondary Rules (or power conferring rules - that decide how primary
rules are to be created and recognized - ex: power to enter into contracts)
iii. Primary rules are compulsory (whether you want or not, you are bound by
them) whereas secondary rules are per wishes of people.
iv. Rule of recognition is a type of secondary rule that recognizes all other rules
and gives 'legality' to a legal system. The Indian Constitution could be
termed as the rule of recognition(or touchstone of legality - though, it is not
exactly a secondary rule or a primary rule in the strictest sense)
v. Rule of recognition is sort of what Kelson proposed as the gurndnorm: the
highest fundamental norm from which all others derived their binding force
vi. H.L.A Hart advocated the seperation of morality from law; also believed
that sovereign comes under secondary law (while austin's sovereign was the
'uncommanded' sov : not obligated to follow the law he/she made)
vii. Hart's Test to call a law as law was the existence of rule of recognition :
whichwere absent from international law : so, is it really a 'law'?
• The answer to the doubt that there is an I law was synthesised by Contemporary theorists like
Samantha Besson who used Hart's positivism to satisfy Hart's test. They treated consent as
the rule of recognition.
a. In doctrinal development of law, Samantha states that yes, a sovereign state is
subject to international law but only when it consents to do so: thus international
rule of recognition(to recognized other legal rules and sources); thus i law = law.
b. Now what are these rules (or international rules of recognition) even sovereigns
are subjected to? - Contained in Article 38(1) of ICJ statute which lists out the
sources(primary and secondary) of international law.

sources(primary and secondary) of international law.
• Issue of jus cogens or ius cogens (or peremptory rules) : certain rules cannot be derogated
(tho under the vienna convention, these peremptory rules are subject to consent - diff matter)
• Dworkin however points out flaws in such proposals of international rule of recognition
based on consent of sovereign to be subordinated - to prove that consent is not the ultimate
basis of international law.
a. No heirarchy of rules or sources of i law. Are general practices > treaties?
b. Though it is based on equal consents, non ratifying parties are also automatically
brought under this rule, their consent or not bcoz the "civilized" nations have
accepted the rule
c. What even constituted as a "civilized" state?
d. On how much acceptance does a rule become a "customary rule"? [remember that
while all jus cogens are customary rules, not all customary rules are jus cogens in
the sense that rules can be derogated by states by creating treaties but jus cogens
ideally is absolutely non-derogable]
e. Most important : Subjectivity of Consent : What did the state (that consented to be
subordinated) think it was consenting to? Answer : Read the document of that
treaty to understand what state consented to BUT BUT BUT documents are not
always that decisive. (example of Art 2(4) of UN Charter given - it says respect
territorial integrity : so does killing terrorists in Afghanistan using drones a breach
of integrity? Or how about dropping prohibited humanitarian relief packages in a
state which is killing its own citizens? Is it breach of its territorial intergrity?)
f. Assume states consent to some restraints on their action by i law without a formal
treaty : now this needs to be enforced as a matter of law not just as a matter of
decency or morality. How to decide which state action will be brought under
restraints that are legally required and restraints that are morally right. Which rule
of recognition helps them make this choice?
g. Consent/Promise after a while become old. Why should a consent given by a state
a century ago by politicians choosen by entirely different people under entirely
different constitutions bind people of today? Yes pacta sunt servanda (treaties
must be followed across generations) is true but why? Why put coming
generations at disadvantage over things they cannot change/alter much?
In all these cases, what exactly is international law? What is its basis? Does I law
even exist or it is just big players playing their game?
• Dwrokin argues that there is something more basic that is guiding all this (instead of the
shallow consent doctrine). These are then discussed in the reading further.
• Moralized Conception of International Law : He asks to give up the consent based positivistic
jurisprudence approach of International Law
a. However, unlike national systems, there are no institutional structures that could
handle political morality etcetera in i arena. So how and who will propound
political morality in i arena?
b. Therefore, he asks us to imagine a court - a hypothetical global court coupled with

authority (world wide jurisdiction) + power (of sanctions enforced by all countries
on its demand) + control : Higgins idealistic court. Now this court will have to
work upon utmost special moral standards of legitimacy and fairness. (Obviously,
no country would agree to give such power to such court but it is assumed only to

no country would agree to give such power to such court but it is assumed only to
provide a scheme for identigying i law, not persuading anyone to follow it)
c. This formulation of theory of International Law could have these decision to be

made
i. Should the theory be so strong that powerful states would not accept it.
Why?
1) In fear of being subordinated to it
2) In fear that their own conception(or intended interpretation) of law

would no longer be used to justify whatever they are doing. A theory
would instead do dudh ka dudh, paani ka paani.
3) Soon we will need sound international law ( for cross territorial case
like climate change or migrant crisis) and the standing theories are
pretty ineffective (and hence comfortable for some) therefore, a change
would be resisted per se
ii. If the theory is not general accepted, is it impractical and wrong?

1) Positivist would say, "ahoy man, law based on consent but if no one
consent, no valid law at all."
2) Internal moral principle : Law unsound if it does not meet general
endorsement
• Westphalian System of International Order : Treaty of Westphalia ended the ended the 30
years’ war between Holy Roman Empire, Spanish, Dutch and most of all Sweden and France.
It developed a modern state-system. The so called ‘Westphalian system’ was based on two
key principles:
a. States enjoy sovereign jurisdiction, in the sense that they have independent control
over what happens within their territory (all other institutions and groups,
spiritual, and temporal, are therefore subordinate to the state).
b. Relations between and among states are structured by the acceptance of the
sovereign independence of all states (thus implying that states are legally equal).
• Post westphalia, question about the justification of coercise political power : it was consistent
with dignity of citizens only when it could be justified in pedigree(rightful heirarchy) and
susbtance (the way it was exercised)
• Theory of Associative Obligation : The idea that we have obligations to each other as
members of a common society, and this forms the basis of International Law.
• To understand how Dworkin arrived at this theory for international law, one must have a look
at the domestic legal system.
a. If in the domestic legal system, if something is understood as decent/moral, how
do we make it legal over a period of time? (From the right thing to do, to a right).
One way to do so is through the system of courts (judicial system). Eg: The
Vishaka guidelines: The moral/decent thing to do was not to harass someone. The
guidelines made it illegal.
b. Further, the awfully mutiple times cites example I use is about homosexuality. In
the British era, the world considered it to be ammoral and Indias were of a
"particular ammoral tinge too"; so they enacted criminal law (377) to prohibit it;
morals dectating laws. Eventually, our morals changed and we saw that
homosexuality is nothing but natural, so the Delhi High Court read down(or
decriminalized) homosexuality from Section 377.
• For Dworkin : The Moral basis of international Law lies in the fact that each state has
obligation to improve legitimacy of its own coercise government and use it to imporove the

obligation to improve legitimacy of its own coercise government and use it to imporove the
international system and vice versa. (this does not mean state should treat other citizens
similarly to its citizens) - The only requirement for moral basis is that state should accept
feasible and shared constraints on its own power.
a. Perils of the Westphalian system (i.e. of unrestricted sovereignity) - it basically
inhibits creation of an effective international order in four ways:-
i. Denied chance of intervention : It fails to let collective humanitarian
interventions(which is a moral duty of other states to help) come in for the
sake of citizens (to save them from genocide, war crimes etceter) when their
own coersive government violates their basic human rights ("degradation
into tyranny")
Ex: Syria using Sarin gas against its own people. Sarin Gas is prohibited
under International Law through the Chemical Weapons Convention.
However, Syria is one of the few nations that isn’t a signatory to this
convention. Can the world community intervene then? Should it? CWC
cannot drive the world community to act against Syria because it is not a
signatory.
ii. Denied security from outside invasions and pressures : When a state fails to
contribute to the international order, it is going to remain insecure to
invasions and pillages in absence of any normative order prohibiting so; thus
that state fails its own citizens
iii. Denied chance of cooperation : esp. when problems are growing beyond
man made, ficticious territories like climate change. Now, a government can
prohibit elimination of waste withing its sea territory(i.e.12 nautical miles)
but if other government is eliminating waste in their 12nm which is affecting
gov 'A', in absence of international order, what can 'A' even do? ; if no state
can be forced to cooperate, they will have no reason(drive) to participate(or
cooperate). It then becomes a game of billiard balls (as realists would have
it) where states just live out of cooperation, always working on their self-
interests, striking each other whenever.
Ex: Australian Wild fire: harmful smoke reached from australia to parts of
New Zealand and South America. No legally binding hard rule to govern it
yet but due to some semblance of international law, laws and policies consist
of “declarations” and soft law(though these are not legally binding, and so is
easily ignored)This also means that there is no possibility of any
international legislative body with sufficient 'authority' or jurisdiction to
solve grave coordination problem that states confront (he in later segments,
proposes one such body with voting and judicial review - not relevant acc to
me)
iv. Denied participation to people in things that affect them (i.e. Denial of
giving a democratic voice of diff groups) : A suffrage or right to part of
decision making processes is key for citizens of modern states. However, as
mentioned before, problems have gone para-territory (ex: economic
interdependence due to amazing globalization) which essentially means that
actions of one country will end up affecting the lives of other countries but
in absence of international order(or cooperation) people will not be able to
do anything about it.
• Having set the background of how consent was not right to describe the basis of international
law, and stating how the westphalian system was a drag, he now comes to his key proposal :
THE LEGITIMACY ACCOUNT or THE MORAL ACCOUNT of basis of international law.
a. You see, a coercise government(including both sovereigns and those
organizations who claim coercise authority) have a moral duty to improve their
legitimacy. Among many ways it could be done, THE DUTY OF MITIGATION

legitimacy. Among many ways it could be done, THE DUTY OF MITIGATION
is prime. It means that states should try to mitigate (or lessen) the harms of the
sovereign-state system - by forming an international order (to tackle the problems
mentioned above)
b. Principle of salience too forms - meaning that if a significant number of states
have entered into a cooperation or treaty (that necessarily improve legitimacy and
help international order) that other non-participating states have a moral duty to
participate and cooperate. Ex: the UN charten aids this very goal of international
order and states do not follow it as law just coz they 'consent' or sign contracts but
becoz that is the moral duty they owe to their legitimacy(and their citizens)
c. Further salience has a snowball effect - the larger the states accepting (or the
widely accepted a) principle, the more moral gravitation it has.
d. The moral account also helps the problem of interpretation of documents (which
was raised in the earlier segments when we were confused about the subjectivity
of consent and how to interpret it from not so decisive documents)
e. Not that moral basis of international law has been settled on - these is one
pertinent issue : Can violations of international law be justified on moral grounds?
And who's morals shall be taken into account? Doesn't everyone feel morally right
to do what they are doing?
i. How do you justify interventions? Do human rights violations justify
interventions?
1) Widely spread thought that any intervention that is not approved by the
security council unanimously is invalid but is that all? What if the
intervention is not moral? - Two opposing cases:-
a) US invasion in Iraq (to disarm iraq of weapons of mass
destruction and end Saddam Hussain's terrorism - though some
might say there was no such reason to invade iraq) - Approved
by Security Council Unanimously - Moral?
b) NATO invasion in Kosovo (against serbian military forces who
were engaged in ethinic cleansing of Albanian muslims of
Kosovo) - Not unanimously approved by Security Council -
Ammoral? [thinkers like Tom Franck called it illegal(as not
approved) but moral necessary]
2) Dworkin's stance is that to judge the morality or justifiability of an
intervention see if it would actually improve the legitimacy of some
coercise government or help international order.
• He finally concludes with rosy promises of world government over westphalian government :
more coordination, respect for humans (as violations locally would be concerns globally),
lesser inequalities etc.
• Random Bits of interesting information:-
A. The Misbelief that slavery is "illegal everywhere" : In 94 countries, a person cannot be
prosecuted for enslaving another human being. This implicates almost half of all the
world’s countries in potential breaches of the international obligation to prohibit
slavery.
What’s more, only 12 states appear to explicitly set out a national definition of slavery
that reflects the international one. In most cases, this leaves it up to the courts to
interpret the meaning of slavery (and to do so in line with international law). Some
states use phrases such as “buying and selling human beings”, which leaves out many
of the powers of ownership that might be exercised over a person in a case of
contemporary slavery. This means that even in the countries where slavery has been
prohibited in criminal law, only some situations of slavery have been made illegal.

prohibited in criminal law, only some situations of slavery have been made illegal.
B. Systematic Abortions/Birth Controls against wishes in China could be read as
genocide :
Uighur women in China’s Xinjiang province who have more than the approved number
of children are being forcibly sterilised, forced to have abortions or having intra-uterine
contraceptive devices (IUDs) inserted without their consent, according to reports that
have emerged in recent weeks. The birth rate for Uighurs, a predominantly Muslim
minority, has decreased significantly
From <https://theconversation.com/legal-expert-forced-birth-control-of-uighur-women-is-genocide-can-china-be-
put-on-trial-142414>
The 1948 Convention on the Prevention and Punishment of Genocide was adopted in
the aftermath of the second world war. Its Article II sets out which acts, committed with
“intent to destroy, in whole or in part, national, ethnical racial or religious groups”
constitute genocide. One of them is “imposing measures intended to prevent births
within the group.” This is precisely what is reportedly happening to Uighur women in
China.
From <https://theconversation.com/legal-expert-forced-birth-control-of-uighur-women-is-genocide-can-china-be-
put-on-trial-142414>
C. Concept of Sovereing Impunity: no suing without consent :
Suing China for the COVID-19 pandemic is legally impossible under international law.
A principle developed during the early days of English monarchs that “The King can do
no wrong”, called the Sovereign Immunity principle, prevents the government or its
political subdivisions, departments and agencies from being sued in civil or criminal
litigation.
In the current day, the principle means no country can be sued without its consent in
domestic and international courts. This means China would need to consent to have
litigation filed against it before it could be sued.
From <https://theconversation.com/suing-china-for-covid-19-is-impossible-and-may-backfire-why-countries-must-
cooperate-137260>
D. Kyoto Protocol: China and India were becoming huge pollutants but were non-Annex
A countries. So, USA (Bush Presidency) in 2000 refused to follow Kyoto Protocol and
the system largely collapsed

Baxi//third world
29 July 2020 14:51
• Reading : Baxi : Third World Expectations from International Law
• Stelwart of TWAIL authorship in India. What is the TWAIL authorship?

a. TWAIL- it is a critical school of intl legal scholarships which an opposition to IL.
It perceives IL as facilitating the West and exploiting the Third World.
b. It seeks to change the oppressive aspects of IL through.
c. It is seen as if IL was born in the West and the Third World sort of deals with it
(koskenniemi's idea too)
d. TWAIL aims to create opportunities for Third World participation in IL by
proposing alternative mechanisms of IL.
e. TWAIL continues to make IL a law of the people and not the law of the nations.
• What is 'third world'

a. Diverse forms of third world and just as diverse definition of I law
b. The only form of commonality among third were countries is that they were
colonized once(by different colonizers tho at diff times and contexts)
c. Different meanings can originate
i. Third world as 'the others' : constellation of non-european interests described
by the universalizing theory of west
ii. Third world serving as a tool : a vehicle/vessle/visage for world domination

and hence the site of exercise of savage powers of colonialism, imperialism
and neocolonialism. (example : The Raj using India as a mere tool to get
material resources; in turn impovershing it)
iii. Third world as insurgents/outlaws: might be seen as insurgent/revolting

groups(as if they are copying the insurgencies of the first world) OR they
might be seen as mere 'outlaws' who need to be brought in line i.e. be fiercly
and sustainably repressed.
iv. Third world as an struggle against universalization : through their(as

colonial subjects) practices of struggle and resistance against European
Enlightenment or Universalizing Capitalism.
1) This gave birth to 'Third Worldism' : meaning the ideological
resistance to imperialism
 Third worldism then comes across as this resistance against the

“imperialism of the same”, which basically means that you are all
being pressured to come together into this one homogenous
whole world community, the “one world” narrative.
 TW comes across as a struggle against the homogeneous
expectation that everyone is a part of one block.
 The first world expects all of us to be one block, where there is
not distinction b/w anyone, saying that our histories were not
different, we are all on an equal footing. TW says put your foot
down because they have more responsibility than we do (Link to
Martti when Europe wanted to help the third world in helping
them develop. How will they be on an equal footing?)
 Further, there are differences which must be acknowledged rather
than shying away from. The recent Paris Convention of Climate
Change: recognizes common but different responsibility. it

Change: recognizes common but different responsibility. it
recognizes that parties vary both in their levels of responsibility
and in their capacities to cope with it
 Third worldism comes as a resistance or as a struggle against
this; you can then understand why there has to be a continuous
struggle or resistance against the imperialism of the “same”, of
people who are similar, of people who want to see us as co-equal
strangers to global problems; which we aren't
 It is based upon ideas of self-determination, self-governance and
recognizing cultural and civilizational diversity(and plurality);
third worldism is an ideological resistance because the physical
third world might not be present today.
2) Withthin the third worldism discourse, another discourse termed 'One-
worldism' finds place - respecting the dignity and ethical equality of all
human beings ('common humanity') which entails effective promotion
and protection of human rights, sustainable development and global
peace & justice.
3) Third worldism might also entail the 'unfinished histories' of 'subaltern
cosmopolitanism' and 'localized globalism' that includes practices of
nation building, integration, just governance etcetera.
• What exactly was the third world? - Post WWII and in the cold war era, the world had been
divided into two major powers
a. The US bloc - First World
b. The USSR bloc - Second World
c. The non-aligned bloc - Third World
• The 'normative mass' called international law might have to be read different with this
background of third world as
a. Master narratives of I law which categorized the third world as mere
'things'/'trajectories'/'vectors' or 'objects of power' are no longer acceptable (i.e.
they are not mere means to an end. They are not just vehicle/vessle/visage in hand
of first world to achieve its goals)
b. The third world 'radical collective agency' infact bring in light/expose the corrupt
national and international sovereigns' ill fitting justifications of 'unjust peace' and
'just war'. TWAIL also stands up to the elite who try to use meaningless, but
loaded terms like good governance (like, what does this exactly even mean?), or
development (whose development, what is being developed, who is benefiting
from this, and at what cost?), etc
c. The authorship of this world also brings out the norms/standards (of international
law and human rights)/and histories of struggle that was lost previously in the
non-inclusive history(history is of those who write it - and first world wrote the
history, largely excluding the third world)
d. It makes international law a negotiating place between the radical popular

authorship and the third world order authorship.
Ex: Ken Saro Wiwa - he struggled against Shell, in Nigeria, where they were in a
joint venture against the government, where through oil spills and leakages from
their pipes, managed to wipe out large parts of tribal Nigeria. Ken Saro Wiwa was
the one who ran this battle against them.
Ex: Our own problems in the Nilgiris against the giant Vedanta
• The conventional definitions of 'third world' shaped by decolonization and cold war era are
irrelevant for us now. With the onslaught of globalization, the neat division of world in three
parts - first, second and third has now been scrambled . Hence we find "first world in the

parts - first, second and third has now been scrambled . Hence we find "first world in the
third, and third world in the first and second world (like soviet union) almost nowhere" But
even before these three world categories solidified, imperialism (somewhat like
globalization) has already mixed the first world civilized nations (baxi calls them
insufficiently civilized - why?) into the living realities of third world.
Ex: Whether the Bhutto family in Pakistan, or the Gandhi family in India. Would they be
called/referred to as “third world”? There are families like these in Sri Lanka, Malaysia, etc.
The Ambani’s and the Adani’s could also be some examples; You will continuously find the
first world in the third world, the people mentioned above are first world people.
Ex: of third world in first world could be taken to mean the mistreatment of people of colours
who have had african origins in American countries; or in the amazing fact that while people
like thomas jeferson are hailed to be amazing radicals who brought forth the importance of
individual freedom and autonomy infact had their own slave holding (even at and after the
time of writing the charter of american independence!)
• Hence literature around third world is also scattered in various accounts

a. One states that a phenoenon like 'third world' never really existed (though
ironically, this might raise doubt about the exitence and form of first and second
world)
b. Second states that third world is just a history of disappointment (on the lines that
third worldism is nothing but failed decolonization, rogue states or failed or crisis
states). This could be somethin on the lines that the state itself turn predatory
towards its citizens (the whole argument of colonial power comes in when India
asks them for compensation(at least moral if not financial) for its present
condition that came due to colonial rule that ruined our country. The colonials
argue that it was not their doing but the doing of the leader elected post
independence - thus, a failed decolonization, a failed state.)
i. What is probandlism? - It is basically the concentration of political power at

the top, with the political elite, the economically elite, the socially elite, etc.
This is systematic government corruption.
ii. All of these can be India, or any “third world” state per se.
iii. But he says that when they tell us that we are failed states, they never tell us
that it was colonialism that created the systems responsible for the
flourishing of probandilist states.
iv. Those who are the elite today, are in a certain way the beneficiaries of the
leaving of the colonial powers.
Eg: Gangs of Wasseypur: Ramdheer became the owner of the mine because
he was the manager of the mine when the British left.
v. Those who were in positions to take benefits out of the disintegrating
colonial states, they ended up holding onto, or hoarding power.
vi. The colonial powers have thereby created positions or/and situations for
such to happen.
vii. Baxi ends it off by quoting Agamben –
“There is there is simply no head of government, nor, one may adda any
regime, who may escape indictment for crimes against humanity”
You may hold us to be failed states, you may use the ICC to hold one
African leader after another liable for crimes against humanity and other
aspects of International Law. But, can Bush say that he has not committed
any crimes against humanity, and shouldn’t they be tried? Did Tony Blair,
the PM of the UK also not commit crimes against humanity, and shouldn’t
they be tried?
i. Third states that the decolonization or anti-imperialist struggles as a mimesis (or

i. Third states that the decolonization or anti-imperialist struggles as a mimesis (or
imitation or copying) of other world liberal political theory rather than being
original. There is a possibility that no such thing as 'physical third world' occurs.
Instead, there could simply be a third world in every normative cohort(or bodies
like world institutions, countries etcetera) that arizes due to power imbalances
within the cohort.
• Third world contribution to international law

a. Key principle is self-determination (state forming its own statehood and own
government)
b. Delegitimation of aparthied racism (that was colonially inscribed in I law theories)
c. Peaceful and friendly relation among states
• Third world expectations : can be categorised in two

a. Core expectations : hard law : necessary things
i. Fuller respect for eqaul sovereignity of all states
ii. Non-aggressive international relations
iii. Limiting use of force
iv. Following of the UN charter
v. Global justice + development of international law
b. Peripheral expectations : soft law : mere aspirations (while these are mere
normative expectations, they more they stand violated, the greater their moral
strenght becomes)
c. The list is provided by baxi : includes stuff like equal rights for women,
preventing practices of torture. Inhuman treatment, indigenous people rights
etcetera. Third world normative expectations are also listed out there like coequal
discursive(different, diverse) identities (of states), territorial non-aggression,
gender equality, global reparative(restorative) justice, equal respect of
'microscopic' minorities and indigenous people.
• Key is that I law should not be given up on. Instead, its normative framework should be used
as a path of resistance against the european universalization and eurocentrism (i.e. making I
law as a forum for negotiating identities, histories and struggles)
• Similar to Dworkin, he says that in the end, try doing the best for your citizens, and this will
improve the legitimacy of the state.

Koskenniemi//History
29 July 2020 14:52
• Reading : Koskenniemi : History of International Law

• First of all, this koskenniemi himself is a european guy, right? - He is finnish; so "dealing
with eurocentrism is not a job for europeans to do, if we need objectivity on the matter. Yes,
it is possible to see oneself with critical view but one cannot overgrow or change themselves
to an extension where they lose their own identity and turn into someone else." - how about a
reading from TWAIL to actually bring forth the eurocentrism
• "Histories" of International Law//not just ''history'' of international law
• A running belief that history of I law began at the peace of westphalia. Not only westphalia,
but the treaty writers, the milieu of development of I law was all European initially. Further,
this history of I law has been the history of practical, white men (haha loaded with exclusion)
• Martti looks for the origin of the subject: finds that its all focussed in Europe.
a. ICC is in Rome
b. ICJ is in Hague
c. VCLT was signed in Vienna
d. Geneva Convention was signed in Geneva; WTO’s headquarters is in Geneva
e. Writers of IL are mostly European as well: Shaw, Brownlie, Grotius etc even the
author of this very paper.
• I have also pondered over the subject : I believe history is of the one who wins/was in
power/dominant. Therefore, had the axis powers won over allies in WW2, our world history
would have been radically different - in its content and the way things played out. The man in
high castle is the best example of it.
The fact that I law was so eurocentric(bearing obvious grudges towards the germans
etcetera) demonized the hell out of Hitler for killing 6 million jews whereas completely
ignored King Leopold II who established Belguim as a colonial power in Africa and
killed 10 million africans in process in Congo. Now, I am not suggesting that deaths are
objectively comparable or that lives of 10 mn africans matter less than 6mn jews, but
see the politicization of history.
• Another example of differential treatment is in the application of standard 'fight against

impunity' : Al-Bashir and how ICC prosecutes african heads of state not European ones or
US heads(like Bush) - as they threat with withdrawl(and further these states refused to even
arrest him even though mandated by ICC)
• It would be a mistake to call I law as a neutral law : it has its biases and personalities. So,
what are the different kind of histories that gives international law its personality?
• Intially, Roman Lawyers and Christian Church influenced I Law a lot. Church would
decide whether a community should go into war or not. Church would dictate laws in states
until they became secular. Church said that war is good as long as it is for good purpose and
not selfish reasons. State can wage war as long as it can be justified.
• Why did the universal international law came to be formalized? What were its roots?
a. In middle ages, I law began to be applied regularly to solve military issues.
Whenever you have military issues, you have different parties with different
cultures and practices on both sides. In order to resolve these issues, I law was
applied.
b. Importantly, I law became a way to justify colonization (of barbaric savages). 16th

b. Importantly, I law became a way to justify colonization (of barbaric savages). 16th
Century Spanish conquest- debate emerged after Spanish conquest of Indian
Kingdoms. Dominican scholar Francisco De vitoria concluded that the conquest
was justified. These are among the first instances where I Law was used as a
means of Hegemony. Indians had unlawfully excluded Spanish Traders from their
routes, which apparently violated natural laws.
c. Along with the liberalism in 80s, importance of I law became ever more important
d. Evolution of law and society could also be used
i. Hobbes' state of nature: brutal and uncivilized
ii. Yet after social contract, certain people remained "barbaric and
uncivilized" - I am laregely referring to the fourth world(as termed by Baxi
to mean as indigenous people). These people are still considered barbaric
and uncivilized as largely as impediments in way of development and
modernization. Colonizers even went on to enact the Criminal tribes act for
'em when they maintained some rights over their lands.
e. Alberiquo Gentini - Produced the first truly systematic study of 'Just war'. Yet,
other scholars said that these works are limited to within Europe and when dealing
with conflicts ‘civilized nations’, hence making it Eurocentric.
i. Law of Commerce- Very Eurocentric. There were very few Kingdoms which
were powerful in trade. European nations began entering into agreements for trade
with each other. Agreements were also entered into with Muslim states. Laws of
commerce were more accommodative of the claims of other nations, and was less
imposing than war laws but still largely favoured european powers.
j. Hugo Grotious- Turning point in history of I Law. Christian Church played an
important role in determining what I law would look like in those times. However,
Hugo secularized the idea. In 17th and 18th century, he worked on the law of war
and peace. This work was so dense that scholars spent their entire life studying his
works. He tried to secularize most of natural law. He states that law of nature
would be the same even if god would not exist. He is separating god and state.
This is in the context of Catholics and Protestants. Most crucial contribution was
his emphasis on law of nations would fall under the category laws made by man
and not merely a component of natural law. I law was a sub-set of law made by
man. I Law would come back to natural law only after the blood bath of second
world war.
• Euro-centric I law?
a. The language colonization : Language Imperialism has been introduced. When we
speak English, we are falling prey to the cultural biases of the place from where
the language emerged. Binaries introduced into our thought. Creates a superiority
framework for European states.
b. A project of european powers : Their aim was to civilize the behavior of nations.
This involves colonizing the world and establishing liberal kingdoms in those
places. They were camouflaging their interest in colonizing by saying that they are
furthering cosmopolitanism.
c. Professor Ernest Nys' work is key to understand this eurocentric hue of laws.
i. Nys accepted the division of the world into civilized, barbarian and savage
people [ Europe as one that would advance the conditions of the latter 2
(Eurocentric view).] - Problematic. He limited the concept of sovereignity
only for the civilized world and not the barbarian world.
ii. He was influenced by three ideas
1) Progress- Nys understood progress as European modernity. This
modernitt meant non-confessional (i.e. not confessing to its own flaws)
political order with advancement in economics and technology . Idea

political order with advancement in economics and technology . Idea
of progress itself was limited. Similar ideas were propounded by
Friedrich Hegel concerning the impossibility of history, and therefore
of future, outside the old and new europe (Baxi called this the
'Hegelian lie' in the third world reading)
2) Freedom- For him, it merely meant freedom from the Church and the
Holy Roman Empire. Freedom=Secularization. He does not consider
the freedom of slaves, or anyone who is ‘savage’ or ‘barbaric’.
3) Humanity- All human societies are part of a universal community, and
should be uplifted with the benefits of civilization(sort of like the white
man's burden). He claims that benefits can be achieved by expanding
civilization, which is sort of legitimizing colonialism. The idea that the
uncivilized world can civilize itself is problematic. One means
suggested was to convert everyone in these countries to Christianity.
4) Jus Gentium : concept of international law within the ancient Roman
legal system and Western law traditions based on or influenced by it
5) Present I law also adopts a European idea of progress. The histories of
jus gentium, natural law, and the law of nations, Völkerrecht and Droit
public de l’Europe are situated in Europe; they adopt a European
vocabulary of progress and modernity. Key distinctions in it between
political and economic, secular and religious as well as private and
public point to European experiences and conceptualizations. These
vocabularies are so key that even the criticism of western model by
TWAIL scholarship is done in these vocabularies.
6) Global modernity – oscillation between international community and a
hegemonic superpower. Advocated by the European elites. Includes
technical aspects as well as cultural markers(Author accepts that all
these are highly Eurocentric irrespective of the ability they provide the
international community to communicate.)
d. Where did hegemony by Europe end?

i. Sir: it was broken in 20th Century, with universal international institutions
such as UN.
ii. Earlier history was a project of Roman lawyers. In 1960s, there was a
specialization and diversification of the study. I Law did not hesitate to
expand into humanities. This professionalization led to globalization of the
idea of state. Wilhelm Grewe reflects on this as an uncertain oscillation
between international community and the hegemony of a single superpower.
The idea of these modern institutions was to universalize I law. Grewe
points out that what was intended wasn’t completely achieved, and vested
interests of powerful state still hinder its universalization.
• The non-European world was referred to as infidel Turks etc and were mere points on the European
map. Were critical of the European colonial history
• Institute de droit- Heavy influence on I law. This organization commenced a study of orient
and infidel. A questionnaire was sent to the members in which they were called upon to give
their view as to whether the customs and beliefs in the West and the Orient – including the
binding force of treaties – were sufficiently alike so that identical rules could be applied
between them (and so that the systems of unequal treaties and consular jurisdiction could be
dismantled). Nothing came of this project. The Oriental states were simply too different to
allow for generalizations. However, this is a progressive change.
• Kant : Goal – Cosmopolitan existence(the matrix within which all the original capacities of the

• Kant : Goal – Cosmopolitan existence(the matrix within which all the original capacities of the
human race may develop.) - On the way, Europe will legislate for all continents
• Maine : Roman law was being diffused over Europe and the acceptance of ILaw by civilised nations
was a mere stage in it. Europeans were the perfect individuals. Left behind the lifestyles of African
savages and Oriental barbarians.
Cultural variations as stages and on the top would be the Europeans.
• Oppenheim : 20th century – more research on the history of the development of the international law
(European origin) rules
• There is a progressive change after WW2. After the Great War, however, few lawyers
persisted in using that language in the old way. After four years of indiscriminate slaughter of
its young men, Europe turned inwards. International lawyers began blaming an exaggerated
sense of sovereignty, national egoism, a loss of the sense of humanity in Europe as the culprit
for the disaster. They now grasped at progressive social theories that pointed to some kind of
world-wide community as the telos of human development. The normative standard earlier
provided by civilization, was replaced by progressive sociology, modernization and
economic and technological development. After the Second World War, these languages
became increasingly professionalized, and from around 1960, started to be integrated into
international law itself. With the diversification of international law’s projects into free trade,
third world development, human rights, environmental protection, and more recently into
fighting against impunity and setting up international executive authority to protect
vulnerable populations, international law found its way home in a universal teleology of
progressive humanitarianism.
• Until late- 19th century, histories of international law were completely Eurocentric. Europe
served as the origin, engine and the telos of historical knowledge. In the 20th century,
Because of the dilution of older norms and values, it became more difficult to articulate the
normative goal of international law. In his 1908 review of the field, Lassa Oppenheim
included in his call for a positive science of international law an exhortation for more history
of the development of the (European) rules, that is to say of the growth of international law as
a part of the Western civilization.
• Carl Schmitt criticized the over professionalization of I law. While commenting on Allied
occupation of Rhineland, he wrote that a nation is only then vanquished when it allows
foreign powers to determine what central constitutional concepts mean. Schmitt had in mind
such expressions as status quo, intervention, peace and disarmament. He argues that we lose
our sovereignty as a nation when we talk about a universal professional international law
where the language is determined by a few hegemonic powers.
• The narrative of international law that depicts progress in terms of a unified »international
community emerging from functional differentiation and technical professionalism speaks a
thoroughly Eurocentric language. When international institutions delineate their jurisdiction
through human rights, free trade, fight against impunity, protecting the environment,
advancing investment or think of their activity in terms of modernization, sustainable
development, state-building, structural adjustment or responsibility to protect, they subscribe
to languages whose native speakers come from universities, think-tanks and civil society
institutions in Europe and the United States.
• While International Law has formal equality, states like US still dance on the basis of their
military and economic might (ex: its decision to invade Iraq on unfounded, poor reasons).
• Solution? - European law's criticism is not the solution. Instead histories and stories of
indigenous communities from colonial experiences should be brought out to provide a
counterbalance and disrupt the monopoly of west over legal ideas.
Ex: Ancient Indian Warfare had myriad rules to be 'fair' during warfare. This was the
theory of 'dharma-yudha' i.e. righteous warfare. Principles were to be followed like
equals fight equals. The rules of engagement also set out how warriors were to deal
with noncombatants. No one should attack an enemy who has temporarily lost or

with noncombatants. No one should attack an enemy who has temporarily lost or
dropped their weapon. The lives of women, prisoners of war, and farmers were also
sacred. Pillaging the land was forbidden.
• There are two ways of going about the histories of IL

a. Realist
i. Martti talks about how Europe has taken over IL
ii. Arthur Nussbaum- that even if the law had become universal, it had not been
rooted in non-European states(Is it really universal though? This is exactly
what TWAIL talks about. They say that IL has emerged solely from the
European and Christian traditions. Third world counties entered the intl legal
system through force, and that does not represent diversity in the system. IL
is v imperialistic in that way. Further, not every state is on the same footing.
Relate to Baxi and CBDR principle.)
iii. Carl Schmitt- non-European world is an object of European taking over their
territories.
iv. Wilhelm Grewe- The newly discovered continents were only an object of
European political manoeuvring. They were not a self-reliant sphere of
activity.
v. In cases of such geopolitics, large powers tend to dominate an determine the

nature of the global legal order.
a. Idealist
i. Albert de Lapradelle’s book includes only a few writings of European men,
jurists, diplomats and legal thinkers and the Alastian Robert Redlob’s
history of 4 great principles:
a) Binding force of treaties
b) Freedom of the State
c) Equality
d) Solidarity
He claims these have travelled through 2000 yrs of Western political thought
and policy (In brief: The theories that these writers talk about have travelled
through thousands of years. But they are all talking about a concept that is
timeless, saying that nothing will change → Martti says this is the “sin of
anachronism”)
• Agnes Lejbowicz focusses on the universality of IL but limits itself to what European voices
have said about this matter.
• These writers are talking about these concepts as if they are timeless and that nothing will
ever change. They didn’t really know what they were talking about when referring to this
being timeless, everything had changed so drastically. This is what Martti calls the sin of
anachronism.
• Historians all write from their POV including all of their prejudices.
• Regardless of whether we are talking about geopolitics or legal doctrines, histories of IL are
as Eurocentric as the world they describe.
• Most writing says that “Europe is only interested in itself.” However, Europe and European
jurists remain in the center of it all.

jurists remain in the center of it all.
• How do we deal with Eurocentrism?
a. We can look at Asian and African(They were both colonized by many European
nations- Britain, Spain, France and Portugal) communities before Europe entered
those territories. This may show something other than these territories following
IL because they are subjected to it by colonization.
b. Sovereignty and self-determination(They have decided that they will administer
their own govt and have self-determined that they do not need an outside power to
help/control them) have assisted the 3rd world in opposing colonization.
c. The instrumental nature of law tended to follow the convenience of Europe. If we
take a look at how Europe ensured domination over some territories, we can
understand how these territories took back their land and established that they
were the dominating ones.
d. We can also observe the effects of colonialism by Europe. This way we can
identity to what extent their laws resulted in colonialism. By doing this we can
identify what Europe considered to be “civilization( Humanly developed to a
stage where they are considered advance. )
• Random Stuff
Idea of cosmopolis comes from city states. Roman lawyers borrowed principles from
Greece, and basically based these principles on Greece. So this idea came from certain
greek states where a lot of trade took place. As a result of trade, considerable number of
aliens would reside in these places for a period of time. So, the conversation began-
What rights and obligations do these aliens have during their stay in the city?
Cosmopolis emerged in this context

Test II
01 September 2020 09:20

General
02 September 2020 14:38
• Public International Law/Law of Nations - just wiki content for better understanding.
• International Law + Municipal Law = National law may become international law when
treaties permit national jurisdiction to supranational tribunals like ICC. Treaties such as the
Geneva Conventions may require national law to conform to treaty provisions. National laws
or constitutions may also provide for the implementation or integration of international legal
obligations into domestic law; enforcement and effectiveness go hand in hand.
• Another concept - "supranational law", which concerns regional agreements where the laws
of nation states may be held inapplicable when conflicting with a supranational legal system
to which the nation has a treaty obligation. The European Union is most prominent example
of an international treaty organization that implements a supranational legal framework, with
the European Court of Justice having supremacy over all member-nation courts in matter of
European Union law.
• "Peace of Westphalia" in 1648 - seminal event in international law.
• "Westphalian sovereignty" established the current international legal order characterized by

independent sovereign entities known as "nation states", which have equality of sovereignty
regardless of size and power, defined primarily by the inviolability of borders and non-
interference in the domestic affairs of sovereign states.
• The idea of nationalism, in which people began to see themselves as citizens of a particular
group with a distinct national identity, reinforced the concept and formation of nation-states.
• Both positivist and natural law schools arose but in the 18th century, positivist school gained
acceptance while natural law came got certain space only in the 20th century.
• The concept of sovereignty was spread throughout the world by European powers, which had
established colonies and spheres of influences over virtually every society. Positivism
reached its peak in the late 19th century and its influence began to wane following the
unprecedented bloodshed of the First World War, which spurred the creation of international
organisations such as the League of Nations, founded in 1919 to safeguard peace and
security. International law began to incorporate more naturalist notions such as self
determination and human rights. The Second World War accelerated this development,
leading to the establishment of the United Nations, whose Charter enshrined principles such
as nonaggression, non-intervention, and collective security. A more robust international legal
order followed, which was buttressed by institutions such as the International Court of Justice
and the United Nations Security Council, and by multilateral agreements such as the
Genocide Convention. The International Law Commission (ILC) was established in 1947 to
help develop, codify, and strengthen international law.
• Lieber Code 1863 became one of the first instruments of modern international law - governed
the conduct of US forces in US civil wars; even led to the first prosecution for war crimes.
• International law became truly international in the 1960s and 1970s, when rapid
decolonisation across the world resulted in the establishment of scores of newly independent
states.
• Enforcement : International law exists in a legal environment without an overarching

"sovereign" (i.e., an external power able and willing to compel compliance with international
norms), "enforcement" of international law is very different from in the domestic context. In
many cases, enforcement takes on Coasian characteristics, where the norm is self-enforcing.
In other cases, defection from the norm can pose a real risk, particularly if the international

In other cases, defection from the norm can pose a real risk, particularly if the international
environment is changing. When this happens, and if enough states (or enough powerful
states) continually ignore a particular aspect of international law, the norm may actually
change according to concepts of customary international law. For example, prior to World
War I, unrestricted submarine warfare was considered a violation of international law and
ostensibly the casus belli for the United States' declaration of war against Germany. By
World War II, however, the practice was so widespread that during the Nuremberg trials, the
charges against German Admiral Karl Dönitz for ordering unrestricted submarine warfare
were dropped, notwithstanding that the activity constituted a clear violation of the Second
London Naval Treaty of 1936.
• The sources of international law (per Article 38(1) of ICJ : It reflects the consensual view that
was recognized by legal positivists that a sovereign could limit its authority to act by
consenting to an agreement according to the principle pacta sunt servanda)
• Following are the sources acc to it:-

1. International custom (general state practice accepted as law)
a. It has two requirements:-
i. State Practise
1) Implies that the practice is followed regularly, or that such state
practice must be "common, consistent and concordant"
2) Can be implied from acts and claims of states (debatable - Akehurst
believes so)
3) jus cogens could be thought of as a special principle of custom with a
superadded opinions juries
4) Jus Cogens or peremptory norm : Is a principle of international law
considered so fundamental that it overrides all other sources of
international law, including even the Charter of the United Nations
(usually the charter under Article 103 overrides every treaty
obligation)
5) The principle of jus cogens is enshrined in Article 53 of the Vienna
Convention on the Law of Treaties.
ii. General acceptance of the practise as obligatory or opinio juris
2. Treaties
a. Hard Laws
b. They can be contractual obligations between parties entering them or can act like
legislations to regulate aspect of international relations. Ex: Article 38(1)(a) of the
ICJ, which uses the term "international conventions", concentrates upon treaties as
a source of contractual obligation but also acknowledges the possibility of a state
expressly accepting the obligations of a treaty to which it is not formally a party.
c. So for a treaty to be general source of law (and not just contractual obligation), it
must
i. either be capable of affecting non-parties or
ii. have consequences for parties more extensive than those specifically
imposed by the treaty itself.
d. Sometimes, they codify existing customary laws like those governing global
commons and jus ad bellum (right to go on war)
3. General principles of law recognized by most national legal systems

a. Given the limits of treaties or custom as sources of international law, Article 38(1)
may be looked upon as a directive to the Court to fill any gap in the law and
prevent a nonliquet by reference to the general principles
b. May include such legal principles that are common to a large number of systems
of municipal law.
c. Legal positivists rejected the idea that international law could come from any
source that did not involve state will or consent but were prepared to allow for the

source that did not involve state will or consent but were prepared to allow for the
application of general principles of law, provided that they had in some way been
accepted by states as part of the legal order.
4. Judicial decisions and the teachings of the most highly qualified publicists of the
various nations
a. In practice, the International Court of Justice does not refer to domestic decisions
although it does invoke its previous case-law. There is no rule of stare decisis
(requirement of precedents) in international law. The decision of the Court has no
binding force except between the parties and in respect of that particular case.
Nevertheless, often the Court would refer to its past decisions and advisory
opinions to support its explanation of a present case.
• Some argue that even practices of international organisation can be a source of international
law.
• Hierarchy : First three are primary sources, so obviously over and prior in consideration to
judicial decisions/teachings. But among primary, heirarchy is a problem.
1. Rules established by treaty will take preference if such an instrument exists.
2. However it is argued that international treaties and international custom are sources of
international law of equal validity; a new custom may supersede older treaties and new
treaties may override older custom.
3. Jus cogens (peremptory norm) is a custom, not a treaty.
4. General Principles also become imp when treaties and customs are lacking, complex or
useless (as commentators like Maria call them equally important)
• VCLT - Vienna Convention on the Law of Treaties - The treaties on treaties : Establishes
comprehensive rules, procedures, and guidelines for how treaties are defined, drafted,
amended, interpreted, and generally operated.
• The VCLT is considered a codification of customary international law and state practice
concerning treaties
• Drafted byInternational Law Commission (ILC) of the United Nations
• It defines treaty as "an international agreement concluded between states in written form and
governed by international law" and affirms that "every state possesses the capacity to
conclude treaties."
• Article 1 restricts the application of the Convention to written treaties between States,
excluding treaties concluded between the states and international organizations or
international organizations themselves. (
governed by the 1986 Vienna Convention on the Law of Treaties between States and
International Organizations or Between International Organizations)
• Article 26 defines pacta sunt servanda

• Article 53 proclaims peremptory norm, and
• Article 62 proclaims Fundamental Change of Circumstance.

Maria//GPIL
02 September 2020 11:28
• Reading : Revisiting General Principles of International Law : Maria Panezi
• Central Theme - Dispell the anxiety with General Principles of International Law.
• She does so by proving that GPIL have greater significance in the area of International
Economic Law, and this fortifies their overall position as a source of International Law;
"something called 'General Principles of International Economic Law' could help consolidate
both International Economic Law as well as General Principles of International Law as a
source of law."
• The paper is divided in three major segments. First segment ellaborates the principle of
GPIL and the next one ellaborates the contentions and reservations relating to GPIL. Finally,
last segment illustrates general principles of international economic law.
• Article 38 1(c) of ICJ recognizing general principles of law recognized by civilised states as
one of the sources of international law.
• However, this article is invoked (and expected by seeking parties to be invoked) in forums
other than ICJ - makes its study complicated
• Article 38(1) (c ) could then be interpreted differently either as

1. As a blanket safety or final resort when nothing more concrete can be found or;
2. As an open door that could legalize unexpected principles and laws : Innovative
normative assessment of social phenomena?
• First Segment - General Principles of International Law (GPIL) - A look at their history,
definition, hierarchy, categories and jurisprudence
1. History
a. The term 'general principles of international law' is not as much used as 'treaties'
and 'customs' as states do not want to give it significance as it could lead them into
something they did not predict or consent to expressly.
b. The terms has a general skepticism that it is not consented to by states and is a
mere contraption build by judges when they do not have anything concrete to fall
back to (the first interpretation of Article 38 1(c ) perhaps?)
c. Recognition to GPIL
i. It was already recognized in the Hague Conferences of 1899 and 1907 - was
used as a common denomination for legal systems to coordinate (as spatio-
temporal differences were hard to bridge at that time)
ii. They were incorporated as a source of law in the Permanent Court of
International Justice (hereinafter PCIJ) Statute - also called the World Court,
existed from 1922 to 1946. It was an international court attached to the
League of Nations
iii. Travaux préparatoires(documentary evidence of the negotiation,
discussions, and drafting of a final treaty text) of the PCIJ - do not show that
the drafters intended the GPIL to be 'innovative normative assessment'
contraptions; instead they wanted courts some concrete principles to fall
back on.
iv. Drafters wanted a mid-ground : wanted to avoid a state of non liquet (any
situation where there is no applicable law. Non liquet translates into English
from Latin as "it is not clear")

from Latin as "it is not clear")
v. Drafters did not want to provide the judges with any general competence of
filing lacunae through the notion of "justice" or anything similar : Positivist
tinge? - deductive reasoning process deriving the applicable law from
general principles rather than solving legal issues through an inductive
method. So are they wanting to reduce judges to mere applier of rules or are
they trying to reduce uncertainities? - see higgins
vi. Not to allow judges to create their own law (as the other two sources -
treaties and customs were incomplete - were being created round and about
the time of the drafting, it continued throughout the 20th century, and it only
came to be recognized as such in the recent years); wanted a for solid
jurisprudence that leaves few questions to states as to what their obligations
and rights are. At the same time, General Principles were considered to be
law and the examples the drafters mentioned were all from domestic legal
fora.
vii. 1945 - ICJ + UN estd. While ICJ was sorta in continuance or on footsteps of
PCIJ, it was not PCIJ's successor. Yet, they had remarkably similar statutes;
both listed sources of international law in their statutes (under article 38,
both list sources)
viii. ICJ : Article 38 1 (c ) "The Court, whose function is to decide in accordance
with international law such disputes as are submitted to it, shall apply… C.
the general principles of law recognized by civilized nations"
PCIJ's article 38 (3) says the same thing.
ix. For interpretation of GPIL ; Article 31 of the Vienna Convention on the Law
of Treaties "A treaty shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose."
d. Using this background and the wordings of ICJ and PCIJ statute, Maria lists out 4
elements of GPIL
i. General - This could mean 'not regional', or something more abstract and
incorporating more subparts, thus being 'more substantial' applicable in lot
of instances and ; 'not special' i.e. ordinary.
ii. Principles - These might be/might not be norms but for sure are neither rules
(i.e. convention or treaty) nor general practise (i.e. custom) - the other two
sources.
iii. Chronologically existent - Already made and not in making etcetera (but
aren't the principles products of episteme of the period they rise in? - then
how come fixed and not dynamic)
iv. Recognized by civilized nations - Who is civilized? - TWAIL scholars not
happy about this word; see baxi
e. General Principles and CIL

i. Tho we have been differentiating that GPIL are normative whereas CIL are
procedural
ii. But they often overlap
iii. Sometimes GPIL could be products of CIL; then it becomes difficult to
make CIL that is against GPIL
f. GPIL could also be seen as a tool of democratic legitimization of League of

Nations by emphasising on representation of maximum possible (though the
expression 'recognized by civilized nations' is a exlusionary by itself); for similar
purposes, it was also entered into ICJ through Article 9 (requiring representation
of "main forms of civilization and of the principal legal systems of the world" in
electing members of the court).
g. Finally, GPIL today are not useless (despite the fact that a lot of areas are now
being governed by specific laws and norms)

being governed by specific laws and norms)
h. ICJ in the Aegean Sea Continental Shelf case (Greece v. Turkey) : judges are to
interpret the rules of international law as they are in the present and not at the time
of the drafting. Hence, today, GPIL not to be assessed based on the fact that the
motive for their inclusion was the dislike for non‐liquet (thus giving way for
innovative normative assessment too)
2. Definition
a. General Principles are considered to be law; drafters’ intent . Also, article 38
classfies all three categories under a, b and c, as "international law". Also,
General Principles, occupying a separate paragraph, are expressly distinct from
custom.
b. Praetorian jurisprudence (or magistarial jurisprudence) - The court does not need
to explain where it found the general principle, or how it established it exists. It
can only invoke it, identify it as a general principle - enough to provide for
legitimacy.
c. Further, judges need not derive legitimacy seperately. GP are autonomous, created
by general consensus, systematically fundamental, part of international law that
consists of normative notions, in which judges refer to through a creative process,
in order to improve the consistency of international law.
d. Hermann Mosler(german jurist)

i. He saw GPIL as distinct yet part of International law
ii. He sees GPIL deriving legitimacy from domestic orders or as product of
general recognition in domestic legal order - hence distinct from
international law
iii. Considers GPIL inspired by the ius gentium, law employed by developed
legal civilization.
iv. But also similar to international law in the sense that they not applied in
international law with their "domestic" capacity but in its adapted form.
v. Hence, definition - "the norm which he applies is a norm of international
law, taken from principles observed in domestic legal orders and adapted by
him to the particular needs of international relations."
vi. “So it the role of the judge to shape the general principle in order to
conclude to a judgment but at the same time he/she must not distance
himself/herself from the core meaning and function of the general principle."
e. Grant Hanessian sees GPIL in two ways

i. As tool providing assistance in the implementation of national law or
ii. As being applicable substantive law - here GPIL's autonomy is more visible
(scholars like Pellet, Daillier and Dinh find no doubt about its autonomy -
evident from how Article 38 lists it differently and both as addition and
contradiction to other two sources - i.e. custom and treaties might be
expressly recognized and consented to, GP as something states do not
consent to)
iii. Autonomy important - it means that interpretation of legal phenomena and
solution of legal problems can be potentially based solely on a General
Principle.
f. Lauterpacht states - GPIL "are not, as such principles of moral justice as

distinguished from law; they are not rules of ‚equity’ in the ethical sense; nor are
they a speculative law conceived by way of deductive reasoning from legal and
moral principles. They are, in the first instance, those principles of law, private
and public, which contemplation of the legal experience of civilized nations leads
one to regard as obvious maxims of jurisprudence of a general and fundamental

one to regard as obvious maxims of jurisprudence of a general and fundamental
character." - equally vague and mix of vast areas of law.
g. Cheng says that General Principles are "cardinal principles of the legal system in
the light of which international… law is to be interpreted and applied" i.e. they
are fundamental to international law.
h. Schlesinger defines General Principles as "a core of legal ideas which are
common to all civilized systems" - then consent coming in? GPIL no longer the
skeptism wala consent less thing?
i. Verzijl says that they are "principles which are so fundamental to every well‐
ordered society that no reasonable form of co‐existence is possible without their
being generally recognized as valid." - over-valuing GPIL as in without it co-
existence not at all possible? The coexistence of states in an international society
under international law does not solely depend on General Principles but on all
three sources, since they are all listed as "primary"
j. Friedmann defines them as an embodiment of the "maximum measure of

agreement on the principles relevant to the case at hand" - therefore these are
fundamental facts everyone agrees on and are building blocks for later
disagreements.
k. Gutteridge says that General Principles originally derive from private law, are
recognized in substance by all major systems of law and should not violate
fundamental concepts of those systems in their application - differs GPIL and
fundamental concepts but does not explain why
l. Jalet describes them as "principles that constitute that unformulated reservoir of

basic legal concepts universal in application, which exist independently of
institutions of any particular country and form the irreducible essence of all legal
systems" ; similar to that of the drafter who wanted to create a reservoir to not fall
into non liquent.
m. But mannnnnnnnnnnnnn Maria got no satisfaction from either of them. So maria

merged it all into seven part definition.
i. They are part of International Law - Hermann Mosler, Grant
Hanessian(as applicable substantive law)
ii. They are (more or less) autonomous - Grant Hanessian
iii. They promote creativity by judges - Hermann Mosler
iv. They are fundamental to a legal system - Cheng
v. They might be "ideas", therefore have a philosophic aspect, but a better term
would be "normative notions", because it shows that General Principles are
law
vi. They are only one of the three sources and one of the elements that keep the
international law system together - Critique of Verzijl
vii. They are a reservoir - Jalet
n. Final definition: "General Principles are an autonomous, created by general

consensus, systemically fundamental part of International Law, that consists of
different normative notions, in which judges refer to, through a creative process,
in order to promote the consistency of International Law."
3. Hierarchy
a. General Principles are placed above other forms of International Law elements
(rules of lower quality), not mentioned in Article 38, and also they are placed
above the judicial decisions and the teachings of publicists

b. How about the rankings withing primary sources? - jus cogens (peremtory non-
derogable norms) state that there is indeed a hierarchy.
c. Can a decision could be solely based on customary international law, or treaty law
solely, or General Principles of international law?
d. GPIL are obviously autonomous.

i. Hermann Mosler suggests that General Principles could be used in both
the application of treaty and custom. That does not render them auxiliary
tools, though. They are examined after treaty and custom but their 'legal
quality' is the same as the other two and like the other two sources, General
Principles too have an obligatory character.
ii. Restatement of the Law (Third) The Foreign Relations Law of US : states
that GPIL are common to the major legal systems, even if not incorporated
or reflected in customary law or international agreement, may be invoked as
supplementary rules of international law. BUT only when customs and
treaties/agreements have not regulated at all, or have left lacunae in a certain
matter. Hence "independent, though secondary source".
iii. The question of ranking might also be answered in what prevails when there
is contradiction between GPIL and customs or treaties - but the question is
moot; If General Principles are the product of a general agreement, and
customary international law appears in cases where state practice is escorted
by opinio juris, then it is rather difficult for states to create customary
international law which opposes the General Principles they accept, or to
develop principles that lead to results different than their established
practice. Also, it seems equally difficult – again, if not impossible – for a
state to enter into an international agreement that has consequences that are
opposite to the General Principles underlying and solidifying its legal order.
iv. Maria concludes that GPIL are

1) Equal to both custom and treaty law : The nature of General Principles
is to appear in jurisprudence when the two other sources are either
insufficient (the case of lacunae) or have reached such a level of
complexity and number of rules that some form of coordination is
needed. So when they are needed, they rank equally as the other two,
and when the judge does not need to resort in them, it seems irrelevant
to question their hypothetical ranking. Even if there is no issues with
other two sources, adding GPIL only adds legitimacy to a judgement
2) Autonomous, because each expresses different legal norms, of a
different nature
3) Independent, since for all three there is the possibility that they alone
provide the solution to a legal question.
4. Categories of GPIL
a. Three (Hermann Mosler)
i. Principles taken from generally recognized national law
ii. General principles originating in international relations
iii. General principles applicable to all kinds of legal relations and in any form
of legal system
1) Systems include municipal, international (states), international
institutions (the law of organizations) or other, autonomous systems
2) These principles can derive from an established legal regime or the
activity of other actors (previously also, he saw GPIL deriving
legitimacy from domestic orders or as product of general recognition
in domestic legal order)

in domestic legal order)
b. Three (Friedmann) : Funtionality of GPIL

i. Principles of approach and interpretation to legal relationships of all kinds
(interpretive aspect)
ii. Minimum standards of procedural fairness (procedural aspect)
iii. Substantive principles of law sufficiently, widely and firmly recognized in
the leading systems of the world to be regarded as international legal
principles (substantive aspect)
5. Jurisprudence
a. Evoked in South‐West Africa case - International Law borrowed from general
principles of domestic law
b. Chorzów Factory Case - heard before PCIJ; Reparation(meaning making good
any loss) was a general principle of International law for its violations.
c. Barcelona Traction case - The Court examined principles regarding property,
expropriation and indemnification and issues of denial of justice.
d. Right of Passage over Indian Territory case - Examined right to passage under
international law
e. North Sea Continental Shelf case - principles regarding contentious proceedings
evaluated (similar in case of Interpretation of the Agreement of the 25th of March
1951 between the WHO and Egypt).
f. Corfu Channel case - evaluated the freedom of maritime communication
• Contentions relating to GPIL
1. Window for judicial discretion

a. Carte blanche to the judges to introduce legislation or rules that the states did not
intent to establish.
b. Justice Aharon Barak of the Israeli Supreme Court

i. addresses legitimacy questions. States that within GPIL, judicial discretion
is sometimes not just a possibility but an inevitable situation.
ii. Justice Aharon states that judicial discretion has to be used to incorporate
society’s values into legal reasoning, but judges have their own sets of
values, so it is inevitable when asked to make a value‐based assessment, to
use their values as a guideline. Acc to him judge should not impose his
views but should examine the social reality around them.
iii. They should also evaluate the universality of a proposition, whether it

actually receives the support by representative legal systems or not -
"system‐representative" approach.
iv. But maria states that this approach is old fashioned, specifically when so
many international org and rules govern state conduct : A contemporary
judge, when he/she decides on a certain issue concerning inter‐border
activities, rather than looking into which geographical legal system it falls
under should instead determine what area of activity it belongs to.
v. So for example, when solving the problem of international investment and

judge faces a problem that they cannot solve it through conventional or
customary rules then, instead of trying to discover the laws of every country
in that field and deduct a common denominator out of all, the judge should
try to make his/her decision systemically compatible with the General
Principles that govern international financial transactions : importance of
GPIL

GPIL
c. So, while there is need of this representative approach as the starting point, there
is a further need to shift from the state sovereign system(or traditional state centric
system) to a system where non‐state actors participate in the formation of
international law.
d. This expansive approach is useful as - GPIL not only derives from a group of
relevant legal rules but also enhances their effectiveness since they come not from
domestic legislatures or alliances of states, but their source seems to be more
geographically expanded and diverse - not based alone on negotiation of
legislation in national parliaments or the agreement between "like‐minded states"
but a product of a more expanded coordination of various regimes, central or
peripheral to the international system : This appears to be an expansion of
Hermann Mosler's defintion of GPIL as now they derive from multiple domestic
sources rather than one. Also appears to be bit more democratic as now it is taking
into account diff vantage points ('democratic legitimization'?)
e. Therefore this sceptism towards judicial discretion might acutally be good as it

strengthens GPIL, as they derive from expanded systems of normative rule
production, more solid and supported by a broader consensus. Further it raises
questions about legitimacy of GPIL and how hard can they make the parties
accountable which is a good challenge.
2. Notion of 'civilized states'

a. Bassiouni tries to simply the entire discussion on whether a nation is or is not
civilized by saying that all UN members today are considered to be civilized.
b. But this is logically flawed. Are non-UN members uncivilised? Switzerland only
became a UN member in 2002. Of course, this does not mean that only then
Switzerland became a "civilized nation". Yugoslavia’s membership was put in a
special status during the nineties, which according to the Bassiouni standard
would mean that Yugoslavia was civilized until a certain point, and then it
stopped, and re‐established its civilized status after reacquiring its seat.
c. Bassiouni also states that the notion of 'civilized' signifies a blend between
positivism and naturalism, or even a compromise between civil and common law -
Maria sorta agrees. She be like, classification of the world’s legal systems into
common and civil is fairly accurate so it seems plausible that General Principles
would be the means to bring the two systems together by finding notions that are
common to both.
d. Fidler gives a scheme of an old and a new standard of civilization. Older

standard of civilization was the values of the Western civilization“ and the
proliferation of its standards into the non‐Western world (eurocentrism).
e. These are all stupid definitions of civilizations - instead GPIEL will give a better
criterion for civilzation
• General Principles of International Economic Law
1. GP and modern market economy

a. The old standard of civilization (imperialist and capitalistic) - based on liberalized
commerce, it empowered private actors and it limited the government’s role in
trade and commercial activities. It also affected inter‐state relations by forcing
non‐Western countries into economic intercourse with the West, requiring at the
same time obedience to international law.

b. Under the old standard, state did not have to be fully Western but only
"Westphalian" at its ability to interact in the international system and the
international society (i.e. had to follow the concept of solidarism which holds that
the society of States rests upon political, economic and cultural likemindness
within States.)
c. The old standard was replaced after cold war when the world stopped being
divided in two poles but multiple actors aroze.
d. New standard of civilization became - associated with liberal globalized

civilization. The new standard of civilization necessarily includes market‐oriented
reforms. Free trade, market economy, democratic governance, good governance,
the rule of law and human rights which forms into General Principles of
international economic law.
e. Tho, does this not again look like the western idea of liberalization? Capitalistic
notions' lip service?
f. Principles of International Economic Law are in effect structural legal principles

that guarantee the regular operation of the market economy.
2. Areas where GP emerge

a. When law assigns some normative role to a pattern, it can be classified as in fact
being a general principle. So for example, an independent xyx firm gives a credit
score to a state. If other independent institution wants to lend money to it, its fine.
But IMF mentions such rating to deny or give credit to a state, what was just a
pattern (of credit rating) now becomes a legal principles (and maybe eventually a
GP)
b. Three such areas
i. International Trade Law

1) WTO panels have used as precedent previous WTO reports. The
panels refer to and consider prior reports, but this happens in a form of
persuasive authority. There is no legal requirement for them to follow
precedent; there is no stare decisis.
2) These rules are crystallized every time a new case comes before the
court and then, through interpretation, the court, by referring to other
decisions, does not just copy what a previous panel said, but it uses
preexisting definitions, interpretations, logical methods and schemes to
find a solution to a different problem.
3) Such rules emerge again and again, eventually they become norm (or
receive normative effect) and become principles.
4) These rules are not cutomary as no opinio juris (or legal obligation is
one of the elements that constitute a custom) is associated with them
ii. International Investment Law

1) Due to proliferation of Bilateral Investment Treaties (BIT) there are a
significant amount of legal obligations, binding for states. They are
applicable law only between the parties, but when a provision appears
in every BIT, then there is a heightened normativity in this rule,
because we can infer a consensus on its existence. Such provisions
could include fair and equitable treatment, principles of Expropriation
(eminent domain - taking private property for public usage) regarding
their rationality?
2) While in immediate uage, these rules are binding between parties of
the treaty BUT in another level, their repetition in other treaties, the

the treaty BUT in another level, their repetition in other treaties, the
similarities among interpretation of relevant provisions by courts and
the expectance of investors for a minimum of treatment, as it is set out
in them, creates a guideline with normative significance - GPIL
forming.
3) Parties outside these treaties also want such principles as it makes it
attractive for new investors to see such rational rules being followed
and also, it helps peripheral (or weaker) global states to enter global
trade without the fear of bigger states bossing them around.
iii. International Commercial Law

1) Lex mercatoria (merchant law) is another source of law that regulates
international commerce - It has been defined as generally accepted
international commercial law principles.
2) National laws proving unuseful as the area of commerce is so dynamic
and it changes constantly, and it has a multinational character, hence
national laws leave a window for lex mercatoria.
3) Lex Mercatoria has been seen as a basic set of principles multiple
times
a) US Uniform Commercial Code - practice that has regularity of
observation is applied
b) Iran‐US Claims Tribunal - takes into account relevant usages of
the trade, contract provisions, and changed circumstances to see
which set of commerical rules to apply
c) ICC Rules, Article 13(5) - arbitrator shall take account of the
provisions of the contract and the relevant trade usages
• Finally she concludes that as no economic crisis is local now and the world economic order is
highly connected (this was also one of the factors that Dworkin had considered while making
a point that international law should promote cooperation and order due to high
interdependence of states) - GPIL would make it all easy.
• Basically Maria is trying to salvage the dignity and importance of GPIL through GPIEL.

Akehurst//CIL
03 September 2020 17:07
• Reading - m
• Sources of International Law ? What is the issue?
1. Whether the sources of international law are entirety of 38 or merely 38(1)
a. Malcolm shaw refers to merely article 38(1) being the source of international law
but
b. Brownly and oppenheim state the entirety of article 38 is the source of
international law.
2. What is Article 38(2)?

a. It is applicable only when parties agree to it; so is it really source of I law? Can
judges use it without parties agreeing to it?
b. It contains the principles of ex aequo et bono - equitableness and fairness
c. North Sea Continental Shelf case

i. Orginally decided by PCIJ but ICJ has clarified that PCIJ hadn’t fully abided
by the procedural requirement of 38 (2)
ii. ICJ stated that that there is no question of any decision ex aequo et ex bono -
that 38(2) could only be resorted to if there was an special agreement
between the parties to that effect if the parties had come to the court saying
that we want you to use the sources of international law but for complete
justice we would ask you to decide what is good or right i.e. we will ask
you to decide what is equitable and consenttious manner
iii. In the absence of that court cannot use 38 (2) the court will use 38 (1)
iv. So without agreement, equity has no place? - No, 38(1) also contains equity
principles - 38 (1)clause c includes general principle in which equity as
general principle of law
3. Hierarchy in sources?
a. Brownly illustrates that the original draft of the statute of ICJ in Article 38 (1)
used the word 'successively' for sources, thereby establishing a heirarchy (as in ,
use 1(a), then 1(b) and so on successively). But the present 38 (1) has no mention
of the word successively, meaning that at present there is no hierarchy among
these sources.
b. Malcom against standing contradictory states that 38 1 (d), is a subsidiary sources

of law. So there is a clearly an hierarchy that can be established. Dworkin also
agrees that there is some hierarchy between the sources .
c. It is believed that treaty and custom take precedence over the general principle
because they are consented to but on possible reason to say how withing primary
sources, there is precedence over other. All we have from the text of statute of icj
is 38 1 (a) (b) and (c) take precedence over 38 1(d) but for the rest we aren’t very
sure .
d. See Maria's point of hierarchy - where she states that there is no hierarchy.
e. Also this laxim of lex specialls derogate legi generali, that means special rule
applies over the most general rule. Could a specifically negotiated treaty be over
and contradictory to GPIL? (tho it is almost impossible as treaties are often mere
codifications of customs or general principles)
f. The discourse of hierarchy is also complicated by ergo omnes and jus cogens
i. Jus cogens is the more substantive idea and ergo omnes is the procedural

i. Jus cogens is the more substantive idea and ergo omnes is the procedural
idea because ergo omnes is relating to the local standi
ii. These two only apply to small subset of issues are placed higher in
hierarchy jus cogens is placed higher in hierarchy in comparison to the
other
iii. Ergo omnes as the procedural idea tries to tell us something’s are more
important than others – like anyone can go to the court related to genocide
and other matters
iv. Non-derogable norms or jus cogens can be found in Vienna convention of
law treaties - articles 53 and 64 . 53 states that if there is jus cogens norm
against which the treaty is created that treaty is void abi initio from the
beginning however, if there is an existing treaty or an preexistent custom
and jus cogens norm comes in opposition of the same then the treaty and the
custom is void from that moment . Similar to 64 if there is an custom and jus
cogens comes up custom becomes void at that point if there is jus cognes
and special local custom comes in then that special local custom becomes
void abi initio. So there does seem to be a very specialized hierarchy for
certain contexts.
• Customary International Law - What is Custom? - Hard to define.
• Four problems in defining it

1. Rules of CIL are created by state practice, but what constitutes SP for this purpose?
2. How frequent, prolonged and widespread must SP be?
3. How consistent must it be?
4. Is opinion juris required, and, if so, what exactly is OJ?
• Around this four problems, akehurst has modelled the entire paper.
• What constitutes state practise? - Looks through various indicators of State Practice
1. Acts and Claims as state practice
a. Restrictive Definition - Minority Opinion

i. Acts but not claims constitute SP
ii. Claim supported by physical acts > Claim not supported by physical acts;
this doesn’t mean latter has no weight.
iii. This definition has been adopted by Professor D’Amato (1971), and
articulated by the ICJ in Anglo-Norwegian Fisheries case by Judge Read in
his dissenting opinion (1951)
b. Wider Definition - Majority Opinion

i. Act and/or claims can be SP
ii. Hence, Arguments b/w states – in (a) diplomatic correspondence, or (b) at
successive United Nations conferences on the law of sea without examining
whether claims have been enforced (i.e. Absence of acts) – can lead towards
identifying rules of CIL.
iii. Illustrations of this approach can be seen in Fisheries Jurisdiction case

(1974) - The judgment relied on ‘claims’ (and did not require ‘acts’) in order
to establish or contradict existence of customary rule of 12 nautical mile
territorial waters. 10 of the 14 judges dealt with the pertinent issue in this
case, while the others refrained from doing so.
iv. Even in the North Sea Continental Shelf case (1969) - The Court relies upon
the Truman proclamation for propounding rules in the area of continental
shelf
v. Similarly, equal importance to both – acts and claims – was attached by the

v. Similarly, equal importance to both – acts and claims – was attached by the
court in the Asylum case (1950).
vi. Asylum Case

1) Columbia granted asylum to a Peruvian, accused of taking part in a
military rebellion in Peru. Was Columbia entitled to make a unilateral
and definitive qualification of the offence (as a political offence) in a
manner binding on Peru and was Peru was under a legal obligation to
provide safe passage for the Peruvian to leave Peru?
2) Facts - Peru issued an arrest warrant against Victor Raul Haya de la
Torre “in respect of the crime of military rebellion” which took place
on October 3, 1949, in Peru. 3 months after the rebellion, Torre fled to
the Colombian Embassy in Lima, Peru. The Colombian Ambassador
confirmed that Torre was granted diplomatic asylum in accordance
with Article 2(2) of the Havana Convention on Asylum of 1928 and
requested safe passage for Torre to leave Peru. Subsequently, the
Ambassador also stated Colombia had qualified Torre as a political
refugee in accordance with Article 2 Montevideo Convention on
Political Asylum of 1933 (note the term refugee is not the same as the
Refugee Convention of 1951). Peru refused to accept the unilateral
qualification and refused to grant safe passage.
3) ICJ - Columbia stated that different countries had made this claim (that
safe passage is to be be given for political offences) so Peru should
allow for safe passage but Peru was saying that there is no
enough act in this direction there are claims but show as the act.
4) The court in this case noted that there was an existence of customary
international law to that effect . It stated that even claim can be
example of state practice you don’t have to show exact acts , both act
as well as claims can lead to state practice
vii. In light of the above – Akehurst argues that there is no reason to have a
restrictive definition of SP.
c. Professor D’Amato’s preference for a ‘restrictive definition’ and Akehurst’s

counter to the same
i. Prof says that claims are weak - as Claims and statements are likely to
conflict with one another, but physical acts do not suffer from this defect
ii. Aekhurst counters - A state can act differently at different times, and
different government departments can act in a different way at the same
time.
iii. Hence, Physical acts do not necessarily produce a more consistent picture
than claims/ other statements do.
d. Flaws in D'Amato's logic and restrictive definition

i. When a state A recognizes another state B, it ‘often’ merely says so w/t
doing any physical act. A claim being SP and eventually CIL
ii. 'Often’ is the important word here. States do send envoys (physical act)
when they recognize a state. However that is not a necessary pre-condition
on recognition.
iii. By analogy requiring ‘acts’ as necessary for recognition of something as
CIL seems rather artificial.
iv. D’Amato further believes that ‘a commitment to act should be included in
our list of examples of the quantitative element’ of custom.
v. A treaty is a ‘commitment’ – but it is no ‘physical act’ that he lays stress
upon! It is ‘only’ a ‘statement’, and this further shows the logical defect of
D’Amato’s restrictive definition of CIL (SP in particular).
2. Statements in Abstracto as SP

a. Dr. Thirlway’s definition of SP is slightly less restrictive
i. States that Claims or Statements = SP; if made in concrete situation; hence

statements in abstracto are not SP
ii. Akehurst believes that such a distinction is also unrealistic – because

assertions about a particular dispute maybe dressed up as assertions in
abstracto and vice versa
1) Example: Arab states and Israel speaking at the law of seas conference
seemingly make an abstract point regarding right of passage through
straits. For all we know that they may have in mind the right of
passage through the straits of Tiran
2) Example: Argentina’s protests over kidnapping of Eichmann (though it
may seem to be assertion on a concrete point, Argentina was more
concerned about the abstract point of ‘violation of sovereignty’ rather
than Eichmann in particular).
iii. Sir - On a personal level I don’t agree with the illustration. For, Argentina
was speaking w.r.t a particular case of violation of sovereignty and not the
concept in abstract. However, this only goes to validate what Akehurst is
saying – the dividing line is thin and not necessarily visible to the outside
observer.
b. Thirlway continues that assertions in abstracto are not constitutive of practice,

only confirmatory of it (i.e. Concrete situation required)
i. Akehurst argues that there exist examples of government replies to League

of Nations (LoN) Committee of Experts for the Progressive Codification of
International Law being cited as ‘constitutive’ of SP, not merely
‘confirmatory’.
ii. Example : On a question centered on exhaustion of municipal remedies,

various governments had – in abstracto – given a statement to the above-
mentioned LoN committee. This was seen by the arbitration tribunal as
‘constitutive’ of SP and not merely ‘confirmatory’ of the same.
iii. Assertions in abstracto concerning content of existing law are sometimes

found in resolutions passed by representatives of states at meetings of
international organizations. In case the resolution was passed outside
framework of international organizations, would it make a difference? NO –
What is important is that they are voted for by representatives of states.
Where they are passed is of no importance.
iv. For example in the Vellore welfare citizen forum case SC accepted that
precautionary principle is a customary international law based on the
abstract statements (relating what precautionary principle) made at the rio
declaration .
v. Thus, even if the statements are made in concrete situations or in abstracto,

they can be as ‘constitutive’ of SP. What is important is that they are put
forward as lex lata and not lex ferenda.
vi. The reason for this is that ‘something which ought to be law’ can’t be an
evidence ‘of law’. Case in point is the North Sea Continental Shelf case
(1969) where the equidistance principle was put forward as lex ferenda and
thus rejected by the court.

3. Resolutions as means of developing CIL
a. The importance of resolutions in developing CIL is well established. However,

what is important is that such resolutions are authority for content of CIL if they
are declaratory of existing law - that is something more than just being abstract
(statement in abstracto? Dr. Thrilway right?)
b. Example: Resolution 96 (I) of 11th Dec, 1946 – “the General Assembly… affirms
that genocide is a crime under international law”. Such unambiguous language is
rare. Compare to Charter of Economic Rights and Duties which states that “it is a
fundamental purpose of the present Charter to promote the establishment of the
new international economic order.” The use of the word ‘new’, negate the
argument that the Charter is declaratory of existing law.
c. Importance of voting figures and reasons for (not) voting viz resolutions
i. Resolution purports to be declaratory of CIL = unanimously passed >

substantial opposition (latter is a weak source of law)
i. State voting for a resolution = must be regarded as accepting it is declaratory

of CIL (if no statement to the contrary). State voting against a resolution =
must be regarded as not accepting it is declaratory of CIL (if no statement to
the contrary).
i. State abstaining is probably in same position as state voting in favour. This

is so because CIL binds states not taking part in formation of general
customary norm unless it expressly dissents from an early date.
d. Many example of such cases, relying upon resolutions.
Dispute in question Resolution relied upon
IMT at Nurnberg Relied upon LoN assembly resolutions and Pan-

American Conference of 1928 as authority to find that
aggressive war was criminal according to ‘customs and
practices of states’
Anglo-Iranian Oil Cited GA Resolutions as authority for rules of customary

Company Limited v law
SUPOR [Italian
Court]
Separate opinion of “the positions taken up by the delegates of states in

Judge Ammoun in international organizations and conferences, and in
Barcelona Traction particular United Nations, naturally form part of state
case [1970 ICJ] practice… amount to precedents contributing to the
formation of custom”

4. National laws and judgments as SP?
a. Minority view/Strupp’s theory
i. It would exclude consideration of national laws as SP because according to

him only relevant SP is the practice of organs which are competent to make
treaties in name of state (i.e. not legislature). According to him, custom
constitutes an implied agreement between states.
i. An illustration of this is Judge Nyholm’s dissenting opinion in Lotus case

(1927)
ii. It is much too restrictive; as it will not only exclude national laws but also
practice of all departments of executive which don’t have ‘power to make
treaties in name of state’. In effect it would mean that all except the Foreign
office shall be excluded in the search of SP.
iii. This shall lead to very incomplete and inaccurate picture in most cases – for
example: admission and expulsion of aliens shall, in most cases, be carried
out by the Home office; but its practice can’t be used to understand whether
a certain uniform SP exists!
iv. Hence Strupp's views discredited
b. National laws as proof of SP - CIL (Majority view)
i. In the Lotus case itself, Turkey relied heavily on the laws of various
countries and France did not argue that such laws could not be regarded as
SP. Infact France itself invoked laws of various countries as a proof of SP
and by extension CIL.
5. Omissions as SP? - Two views
a. Omission = SP? – PCIJ

i. The Lotus case (1927) again falls at the center of this argument. The PCIJ
held that absence of prosecutions did not prove the existence of rule of CIL,
but only because the omission had not been accompanied by opinion juris.
ii. Thus, a clear inference is that omission + OJ = (can be) CIL
b. Omission = SP? – Followed by ICJ

i. The Nottebohm case was partly decided on ‘the practice of certain states
which refrain from exercising protection’. - diff between PCIJ and ICJ
approach.
ii. Nottebohm Case

1) Nottebohm was born in Germany in the 19 th century and early
1900’s he moved to Guatemala and till 1933 he stayed as a permanent
resident of Guatemala but citizenship was of Germany
2) He went to another small country Liechtenstein which is between
Germany and Switzerland in 1939 and II nd world war broke out so he
applied for citizenship there.
3) He easily got it so he gave up German citizenship and acquired this
small country citizenship and with that new passport he came back to
Guatemala.
4) In Guatemala he was arrested as he was understood to be German and
he was transferred to United states. His property was seized by the

he was transferred to United states. His property was seized by the
state and after the war was over the question was raised whether
Nottebohm has been violated in certain manner
5) Liechtenstein sought a ruling to force Guatemala to recognize
Friedrich Nottebohm as a Liechtenstein national
6) Question was do countries take actions in such situations? do
countries issue passport in such situation? do other countries accept the
change of such citizenship from an enemy country? The omission was
taken as evidence so omission also forms an state practice .
6. The practice of international institutions and individuals - can be SP.
• Having discussed what SP is, the second problem is how frequent, prolonged and widespread
must SP be i.e quantity of practice?
1. The problem of repetition - can CIL be created by a single ‘act’ (act and/or claim) or is
repetition necessary?
a. Views of Authors
i. A number of authors do believe that repetition is needed. Those who seek
‘passage of time’ may be taken to imply necessity of repetition, since the
two usually coincide - (The Norm)
ii. But there are also some who stand outside this circle (The Exceptions) –
Cheng (1965), D’Amato (1971) & Tunkin (1974)
b. Judicial authority is inconclusive
i. There are a number of cases where courts have held that a rule of CIL exists
because it is supported by abundant practice; however this in no way means
that lesser abundant practice would have been insufficient to establish the
said rule.
ii. Though judges have made express statements that repeated acts are
necessary for CIL, but most of them are only obiter dicta made in course of
the judgment.
iii. The North Sea Continental Shelf case (1969)
1) The Netherlands and Denmark were able to produce very small
number of examples of delimitation in support of their arguments. The
ICJ stated: “… the court [does not] deny… [the cases cited have no
evidential value]… it simply considers that they are inconclusive, and
insufficient to bear the weight sought to be put on them as evidence of
settled practice… as would justify the inference that delimitation
according to the principle of equidistance amounts to a mandatory
rule of CIL
2) Does this mean ‘small number of cases’ is insufficient to give rise to
CIL? No, because if one looks at the judgment more closely we see
there is more to the decision than simply lack of ‘repetitive’ practice.
3) Breaking the case terms
a) Let’s take the word ‘inconclusive’ - The (examples produced)
were deemed ‘inconclusive’ because they were of ‘dubious
relevance’. It was either coz, the examples taken were not
comparable – type of delimitation was different or they were
weak

b) Moving onto ‘insufficient’ - There existed a rule of CIL that
continental shelf shall be delimited in an equitable manner; while
the ‘equidistance’ principle being advocated by The Netherlands
and Denmark would have resulted, as per the court, in an
inequitable result. Thus, the nations named above were looking
to throw out existing customary rule – and practice required to
create new customary rule against existing > practice required to
create a new rule in vacuo. Therefore, the court said that evidence
was insufficient.
4) Thus, the North Sea Continental Shelf case in no way conclusively say
that ‘repetition’ is a must for creation of a rule of CIL.
iv. Lubeck v. Mecklenburg-Schwerin (1928) - It is possible (although very
unusual) for a single act to create a rule of CIL.
c. The Proof of Custom - The proof of custom is relative, not absolute - This point
pushes us towards the understanding that repetition isn’t necessarily a pre-
condition for creation of a rule of CIL.
d. So, can a rule of CIL be created by one or two acts? - YES – the nature of
custom/legal institutions varies in accordance with the nature of society in which
it operates. Refer to North Sea Continental Shelf case & Judge Tanaka’s views in
South-West Africa case.
e. As sources/signs of SP - Laws which are frequently applied > Laws which are
seldom/never applied ; Any SP carries greater weight if it involves repetition.
2. Prolongment - The problem of time
a. Immemorial usage
i. Dissenting opinion in the European Commission of the Danube case (1927)
by Judge Negulesco said that custom required immemorial usage. This
dictum has been frequently quoted ever since to argue for the necessity of
passage of time.
ii. The Right of Passage case (1960) : ICJ held that a practice lasting more than
125 years had given rise to a rule of CIL, however this is not to say that a
shorter duration of time cannot lead to the creation of a rule of CIL.
iii. The Problem of time and the Continental Shelf
1) Beginning with the Abu Dhabi case (1951): Doctrine of continental
shelf not equal to CIL
2) Geneva Conference (1958): Greece argued that ten years was too short
to establish the doctrine as a rule of CIL; Israel (and others) considered
it to already have become CIL This shows that they believed ten years
to be sufficient time. Maybe!
3) In the North Sea Continental Shelf case the ICJ stated that ‘the passage
of only a short duration of time is not necessarily, or of itself, a bar to
the formation of a new rule of CIL’.
4) Judge Manfred Lachs gave an example of CIL being ‘established in
remarkably short period of time’: The freedom of movement in outer
space.
5) Brierly illustrates the point by speaking of national sovereignty over
air space which arose ‘at the moment the 1914 war broke out’

b. So, can a rule of CIL be created over a ‘short’ duration? - YES – Logic remains
the same as that for ‘acts’: nature of custom/legal institutions varies in accordance
with the nature of society in which it operates. To this logic he adds the fact of
faster communications that has made the question even more redundant.
3. Widespreadness of SP? - The number of states taking part in the practice
a. ‘Participation’ is the most important element in determining CIL
i. To sum up till now - Importance in determining CIL = Number of states
participating in a practice > Number of acts that compose the practice (i.e.
repititions) >> Duration of the practice
ii. Who are Participating = Actions of states + Reactions of states whose rights
are affected
b. How much ‘participation’ is needed?
i. Older authorities = all states must agree before a rule can become CIL.
(Example: Tinoco Arbitration (1923) and dissenting opinion by Judge Weiss
in Lotus case (1927))
ii. But Art 38 (1) (b), Statute of ICJ requires general practice, not a universal
practice - Don’t rely on wording of Article 38 as it hasn’t stopped the court
from applying regional (Asylum case) and bilateral custom (The Right of
Passage case) – neither of which in any way confirm with the idea of
‘general’ practice.
c. Bilateral practice → Regional practice → General practice → Unanimity
(redundant nowadays)
d. One point which might cause confusion vis-à-vis the above claim is the North Sea
Continental Shelf case (1969) where the court required ‘a very widespread and
representative participation… SP, including that of States whose interests are
specially affected, should have been both extensive and virtually uniform’
e. So isn’t unanimous practice asked for by the most important case on CIL? - NO –
the reasons are two-fold
i. Court was dealing with the transformation of a treaty provision into CIL,
and therefore it possibly set-up a more stringent requirement (Akehurst
guesses!)
ii. There was existing rule of CIL that required to be overturned, therefore
higher requirement.
f. Unanimity – What is it? An easy answer is that no unanimity exists on the
question of what ‘unanimity’ might mean.
i. Judge Tanaka in South-West Africa case (1966) required a very large
majority.
ii. Judge Loder in the Lotus case (1927) required ‘a considerable majority of
the states’.
iii. Judge Ammoun, in the North Sea Continental Shelf case (1969), stated half
the states will not be enough (presumably 50% + 1 would be).
iv. Judge Ammoun later, in the Barcelona Traction case (1970) stated that
consent of the Third world states was needed.
v. Similar arguments have been used by Soviet writers – rules of CIL need to

v. Similar arguments have been used by Soviet writers – rules of CIL need to
be accepted by ‘socialist’ as well as ‘capitalist’ states. However, what does
this mean? Consent of ‘all’ or ‘majority’ or ‘leaders’ of a bloc?
g. How much participation is needed?
i. The number required shall vary according to amount of practice which
conflicts the rule.
ii. Reason why this understanding ought to accepted: Due to high number of
states today (viz 19th & 20th century when most of CIL was created)
requiring a high proportion to make new CIL will make the ‘process an
intolerably difficult process’
• Having discussed SP, its frequency, now lets talk about its consistency - consistency of
practice?
1. General
a. Constant and uniform practice had given rise to CIL – The Right of Passage case
(1960)
2. Are inconsistencies in SP invariably fatal to establishment of CIL? - Small amount of
inconsistency doesn’t prevent establishment of CIL (process needs to be ‘virtually
uniform’ and not ‘absolutely uniform’).
3. Time of inconsistency
a. Paquete Habana (1900) – Inconsistency till 1815, post which the practice was
consistent - CIL did exist post-1815.
4. Conflict between different kinds of practice/should we value one over the other?
a. Proposition: Expansive definition of SP increases inconsistencies to be found in
state practice.
i. If we believe this proposition, then it is tempting to argue that some types of
practice (acts) override others (claims/statements in abstracto) – in hope of
eliminating/reducing inconsistencies where they will not prevent formation
of rules of CIL.
ii. But should we believe some types of practice overrides other?
iii. Argument: Statements in concrete situation (X) more practical than
statements in abstracto (Y)
iv. Counter-Argument 2: But X could very well be made to further interests in
particular dispute; while Y may be less self-serving.
v. Similarly, going by Strupp’s argument – should we place foreign office (X)
at a higher pedestal than courts (Y)?
vi. X has expertise, while Y has impartiality – which do we value more?
b. Akehurst shows that in both cases we can’t really place any type of practice above
the other as both have their own benefits.
c. Is practice of some states more important than others?
d. Such suggestions are only found in academic writing; not in diplomatic
correspondence or judgments of courts.
e. Some states do exercise greater influence over development of CIL – but it is
because their practice is more publicized or frequent, not because it is intrinsically

because their practice is more publicized or frequent, not because it is intrinsically
more important.
f. Actions of great powers generally receive greater publicity and are, therefore,
more likely to be imitated by other states. It is the presence or absence of imitation
that affects future development of CIL not the fact of original action taken by
great powers.
5. Dissenting states
a. A rule of CIL can bind a state that has never consented to it.
b. Once it becomes binding on a state it can’t release itself from the obligation, so
entailed, unilaterally – the rule remains binding until it is replaced by a new and
different rule of CIL.
c. Can a state prevent a rule of CIL from becoming binding on them in the first
place?
i. Yes – by being a Persistent Objector – it must - oppose the rule in its early
days, and maintain its opposition thereafter
ii. Leading case on the point is the Fisheries case (1951) where the court held
that the practice supporting ten-mile bay rule wasn’t consistent enough to
give rise to CIL, and added:“In any event, the… rule would appear to be
inapplicable as against Norway, in as much as she has always opposed any
attempt to apply it to the Norwegian coast.
iii. Attempts have been made to speak against the idea of persistent objector,
however the author notes that the idea has considerable support among both
judicial decisions and works of other writers
d. Why Persistent Objector?
i. If states were unable to opt out, by dissenting ab initio, then there would be
all kinds of logical and practical difficulties. Like,
1) If single states dissent could prevent a new rule of custom (unanimity
requirement) then hardly any advancement in terms of CIL would be
made; and
2) If dissenting states was bound against its will then it will create a
system of majority voting, which in turn shall have two main issues
a) How much of a majority is needed?
b) Should votes of different states be ‘weighted’? - Persistent
objector overcomes all these issues.
ii. Practical explanation - Unless dissenting states are numerous hey hardly
keep up this ‘objection’ for long – the realities of ‘social’ existence
6. New states
a. Traditional theory - NIS are bound automatically by all rules of CIL when they
becomes independent. Reason: They can’t effectively dissent as ‘independence
came too late for them
b. Soviet writers - CIL = Implied agreement b/w states; thus NIS are not bound
without their consent.
c. Attitude of Asian/African states lacks clarity and consistency. For some rules they
have denied being bound to, while others they accept automatically and not

have denied being bound to, while others they accept automatically and not
because they have consented to them.
7. Regional and special custom
a. Regional custom (Asylum case) = Particular to region; or may exist b/w states by
reason of historical, racial, political, religious or other affinities
b. “5. In this connection, it is essential to stress the trends of Latin-American law and
that of Asia and Africa, and their undeniable influence on the development of
traditional international law.
c. It seems indeed that among the principles and norms which have sprung from the
regional law peculiar to Latin America are the norms and principles whose aim is
to protect countries in that part of the world against the more powerful
industrialized States of North America and Europe.
d. An Afro-Asian law also seems to be developing as a result of the same

preoccupations, springing from the same causes. In the field of the responsibility
of States and of diplomatic protection, the same points of view have been adopted
in the countries of the three continents, thus initiating a form of co-operation
which will not be of slight effect on the renewal of law
e. Bi-Lateral/Local custom (Right to Passage case)
f. Special custom = term used by Akehurst to cover both regional and bilateral
customs. They, by definition itself, conflict with the general customs.
g. Advantages of recognizing special custom: It provides a means of explaining

away inconsistencies which would otherwise be fatal to creation of general
customs.
h. Effect of special custom: As between states among which the special custom
exists special custom prevails over general custom, unless the latter is a jus
cogens - Reason for this is that lex specialis derogate generali.
• Having discussed SP, its frequency and consistency, now lets talk about opinion juris -
whether OJ required and if yes, what exactly is OJ?
1. Something from which states are not morally obligated not associatively obligated not
socially obligated but legally obligated
2. The traditional approach
a. The traditional approach is best summarized by the ICJ in the North Sea
Continental Shelf case (1969) at para 77 on p. 44: “The essential point in this
connection – and it seems necessary to stress it – is that even if these instances of
action by non-parties to the Convention were much more numerous than they in
fact are, they would not, even in the aggregate, suffice in themselves to constitute
the opinio juris; – for, in order to achieve this result, two conditions must be
fulfilled. Not only must the acts concerned amount to a settled practice, but they
must also be such, or be carried out in such a way, as to be evidence of a belief
that this 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 the opinio juris sive necessitatis. The States concerned must
therefore feel that they are conforming to what amounts to a legal obligation. The
frequency or even habitual character of the acts is not in itself enough. There are
many international acts, e.g., in the field of ceremonial and protocol, which are

many international acts, e.g., in the field of ceremonial and protocol, which are
performed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty."
b. Akehurst’s ‘difficulty’ with the traditional approach - It seems to require that

states must believe that something is law before it can become law! It is for this
reason, Akehurst suggests, that many attempts have been made to reformulate the
requirement of opinio juris.
3. The reformulations (non-traditional approach)
a. Denying or minimizing the need for opinio juris
i. In many cases courts have decided on an examination of practice that a rule

of CIL exists, without requiring or finding any evidence of OJ
ii. It is important to note that though some cases make no mention of

requirement of OJ, none of them expressly state that it is unnecessary. So,
maybe we can’t throw out OJ on basis of these cases alone.
iii. In fact, there are many cases which do specifically base the judgment on OJ.
(Two of the most important cases on CIL have revolved around the lack of
one party to show opinio juris – Lotus case (1927) & North Sea Continental
Shelf case (1969))
iv. Due to this seemingly conflicting variety b/w cases some believe that judges
have an unfettered discretion to insist on/dispense with the requirement of
OJ
v. Do judges have unfettered discretion/should they have it? - No – this

approach in its totality is problematic as it doesn’t help in predicting how a
judge will decide a case, or a solution which don’t even reach the courts.
4. So is there a role for OJ in determining rules of CIL?
a. IL, like all legal systems, has two types of rules:

i. Permissive
ii. Obligation/Duty imposing
b. The frequency (repetition) or consistency [of state practice] cannot provide

answers w.r.t the former type of rules, i.e. are they part of law? For example:
States habitually write to one another on white paper, is this – with massive SP –
part of CIL?
c. Akehurst suggests only OJ can provide answers to such questions, i.e. it is needed
to distinguish b/w legal and non-legal obligations (derived from considerations of
morality, courtesy or comity).
5. Opinio juris as the consciousness of moral or social needs
a. Another way suggested to skirt around the infirmities of the traditional approach
has been to define opinio juris differently.
b. It was suggested that OJ be seen as a belief that conduct is required by some extra
legal norm – and this belief coupled with SP ought to create rules of CIL. This
extra legal belief could be anything – some suggestions are ‘reasonableness’, or
‘something suited to needs of the international community’ etc - see Posner where
he argues that OJ required along with rationality

he argues that OJ required along with rationality
c. However, Akehurst notes that: Practice + moral/social obligation are not equal to
rules of CIL (in all cases). He goes onto give various examples to support his
claim, for instance, he states, that the immorality of aggressive war was
recognized long before its illegality.
6. D’Amato’s theory of articulation for seeking OJ
a. Practice (in question) + (preceded/accompanied by) ‘articulation’ of rule = CIL
b. Articulation, as per D’Amato, can come from a state, a court, an IO or a writer

i. Proviso-1: It receives sufficient publicity for states to have actual or
constructive notice
ii. Proviso-2: There is no ‘articulation’ of a conflicting rule
c. Akehurst criticizes this theory saying this ‘same as SP’. Moreover, the example
taken by D’Amato is absurd (Japan – Western calendar)
7. Statements, not beliefs as OJ
a. Practice + statements (recognizing such conduct as obligatory) = CIL – D’Amato
b. D’Amato would include statements by state, court, IO or writers. Akehurst says

all that matters is statements by states (or other bodies capable of creating rules of
CIL). He pointedly excludes writers, by themselves, can’t give rise to CIL
c. How is this different from traditional view? This reformulation seeks ‘statements’
while the traditional view uses the word ‘beliefs’.
d. What difference would this ‘change’ makes? D’Amato believes that this would
allow others to understand, more clearly, about the ‘truth’ behind the making of
such a statement as to a rule of CIL.
e. Akehurst contradicts this by saying that it would make no difference – as there is

no way of knowing whether the state making the statement genuinely believes it
to be true. Therefore it would make no difference whether it is a ‘belief’ or a
‘statement’ – the court dealing with the matter (in case states do not reach an
agreement themselves) shall have to see the evidence and decide whether either is
genuine or not
f. As such, Akehurst contends that the traditional idea ought to stay as it is ‘wider’
in scope than the said reformulation
8. Clearing the confusion around OJ – Duties and Liberties

a. Akehurst suggests that confusion around opinio juris comes from the assumption
that all rules in international law are obligation/duty imposing. However, that is
not so – all systems shall have some obligation/duty imposing rules while others
will only be permissive in character.
b. Permissive rules – (i) no statements are needed to establish such rules; (ii) states
act in a given manner and others acquiescence: is proof enough to show their
existence.
c. Note: If there is no statement recognizing a right to act, it may be dangerous to

infer opinio juris from one or isolated acts; the inference becomes stronger as acts
become greater in number

d. With respect to obligation/duty imposing rules there must be statements by states
that they regard an act as obligatory.

Posner//CIL
02 September 2020 16:27
• Reading - UNDERSTANDING THE RESEMBLANCE BETWEEN MODERN AND

TRADITIONAL CUSTOMARY INTERNATIONAL LAW by Jack L. Goldsmith [FNa1];
and Eric A. Posner [FNaa1]
• Akehurst talked about certain systems of understanding customary international law; Posner
here explores how CIL's understanding and conceptualizing is being changed
• Posner also disusses whether countries follow CIL because there is a psychological belief that
it is a law or they have to because its a rational choice.
• The point is to prove that there is something more than just opinio juris that states observe -
this extra thing is rationality(proven through 2 cases). In essence, posner is adding
practicality in theoritical fora
• The authors contend that the understanding of CIL is changing in today’s world.
1. Positivist
a. Once it was driven by positivism where there was strict idea of state practice
followed by a psychological belief that you are following it simply because its a
state practice (i.e. Doing with voluntary consent). Only when this idea of consent
came together, there was something called CIL.
b. Example: Paquete Havana (U.S. SC.1900). Intros case: The US SC was trying to
understand whether there was an exception to the rule that suggests that during
times of war, enemy ships could be apprehended. The court was looking for an
exception to this rule vis-a-vis shipping vessels.
c. The traditionalist/positivist idea of CIL, where consent of state has to come

through both belief and act, both opinio juris and state practice have to come
together form custom.
2. Modern
a. But now a change is coming in this understanding of CIL. The change is—
nowadays, rules of customary laws are said to exists out of very little evidence or
evidence coming from general assembly resolutions.
b. According to the traditionalists, the GA resolutions can only tell you the direction
in which the world community is moving. But today you put together a no. Of GA
resolutions and people are claiming that customs exists on such and such point.
You put together some treaties on a certain point and people argue that customary
practice exists on that point.
c. Example : Case of Filartiga Penaral : The case is about a torture committed by a

state official in a second country, say X. Can the person who committed the
torture on behalf of a country in state X be apprehended and tried for torture years
later by the systemes of country Y(US)? Us has something called alien torts act
which allows it to take cognisance of these offences. The US Sc in this case
basically said that there is a customary law against torture and therefore, if torture
has been committed even as a state act in a different jurisdiction, years later we
can and we will take cognisance of it. So this is an example of new customary intl
law.
d. Similarly, from the Indian jurisdiction Vellor welfare citizen forum case (refer to
slides in the Akhert’s reading). In this case, the Indian S.C. held that the ideas of

slides in the Akhert’s reading). In this case, the Indian S.C. held that the ideas of
sustainable development (but even more problematically) the ideas of
precautionary principle and intergenerational equity etc. were CIL.
i. Now in the traditionalist idea of customary intl law, they were not CIL as
there is no single definition of the idea of precaution so how can it be a rule.
Since there is no single definition its not a rule, but merely a principle; or not
even a principle, its an approach or guidelines that the countries may
take/follow, but its not law/rule.
ii. Indian S.C. stated precaution as CIL, but There have been instances where
we have prioritised development over precaution. These developmental
activities had irreversible damages, example sardar Sarovar dam. So if it was
CIL, then we would have been bound to follow it, but we did not - point of
this?
iii. This shows how rationality (where we placed development over precaution)
also is a driving force for states to follow CIL
• Key points:2 divergent views of customs in todays world
1. The traditionalist view— express consent of states based on singular acts built over a
period of time.
2. Modern view— look at treaties, GA resolutions, academic commentary , and to be

called a CIL, there should be enough movement in that direction.
• The traditionalists object to the modern view of customary intl’ law by saying that this is
illegitimate, incoherent. There is no singular coherence within us a principle which is now
being pronounced as CIL in such a such a manner.
• Whereas those supporting the new change are arguing that its a happy development because
now the focus is on human rights, environmental rights and now we are finally taking action
vis-a-vis things that matter.
• Posner : The authors don’t have any problem with either of these two, but they want to show
to both the supporters and critics that there is not much of a difference between the two. And
that their core arugument will be that states are following certain rules because it is in their
rational interest and nothing more.
• Paquete Havana Case

1. The authors use Paquete Havana case to showcase the evidence that went into them
pronouncing that fishing vessels were exceptions against the rule of apprehending
enemy shipping vessels during war.
2. Per the traditionalist understanding of CIL so the courts before pronouncing the
judgement must have gone through depths of state practice, to find out whether this
practice was being carried out as a matter of legal belief that they were obligated to
follow. But sadly that’s not the case.
3. Goldsmith and Posner says that to say that there was a customary rule that allowed you
to capture vessels of another country and there was not a customary exception to this in
terms of fishing vessel, the court looked from 15th century to 19th century, and this is
all the evidence of what they had of state practice. — paucity of evidence
4. So till the early 19th century, the court ruled that there is no exception to the rule
whereby you can capture enemy vessels.
5. The exception comes around in 1815, from when the US SC says that there exists a
state practice which stops countries from capturing fishing vessels .The SC looked at
various examples where the fishing vessels were not seized by the enemy nations.

various examples where the fishing vessels were not seized by the enemy nations.
6. But goldsmith and Posner says that the SC is not noticing that the only place where the
exception was granted was on the east coast ( US’s war with Spain— on east coast the
US had trade lines with Europe and so did Spain, Mexico). THE COURT ONLY
LOOKED at the state practice of the east coast and said that there exists an exemption.
But what about the west coast where the US was actually seizing Mexico flag bearing
ships. The authors also state that the period of 1815- 1900 was a period of relative calm
in Europe there were hardly any wars being fought, and even in the wars that were
being fought there were instances of violation of this rule. So can we really say that
customary law came into existence during this time? and the only real war, the crimean
war, the British were destroying fishing vessels. So can we say that a custom came into
existence? Is this the traditionalists thoroughness vis-a- vis state practice and opinio
juris. The traditional view talk about state practice and opinio juris, this doubling of
consent and belief and action coming together to form customary law. Not the US SC is
basing its 1900 judgement on the evidence from 1815-1900, to say that till this time
there was no exemption for fishing vessels , but an exemption came into being post
1815 and this is the evidence we have for it.
7. Goldsmith and Posner say that its not their job to critique the US SC by saying that they
did a bad job in Paquete Havana. Lets give it a benefit of doubt that when the US sc
proclaimed that customary practice had been formed, from that moment onwards it was
followed not only US, but by others. Because now the court has stated that customary
practice exists.
8. So lets look at the evidence from the 20th century. The evidence out here comes from
the 2 world wars - fishing vessels weren’t being harmed. The Vietnam war- fishing
vessels weren’t being harmed. but the Americans destroyed fishing vessels in the
Korean War. Could it be because they were a bit too busy in WW1 and 2 to be going
after poor fishing vessels? Could it be that the Vietnamese had the Americans on run
and they were fighting a pitched battle and couldn’t take on enemy’s like poor
fishermen? So is this really USA following something which they believed is their legal
obligation to follow.
9. This all evidence has been referred to in Paquette Havana case to argue that a custom
did come into formation w.r.t. fishing vessel exception at around 1815 and if the the
traditional idea of CIL is as solid as we deem it to be, then this was followed thereafter.
The authors say that the second argument that it was followed thereafter because the
countries believed that there is a legal obligation, there is opinio juris upon them to
follow this exemption isn’t really the reason why countries were following it.
10. Instead of opinion juris - 3 reasons all of them emanating from the rational actor theory
to try and explain why countries could have been possibly follow the exemption for the
fishing vessel or indeed any other customary rules that might be in existence.
a. Coincidence of interest— is it really in the interest of any navy to destroy fishing

vessels of another? It is time consuming, expensive, activity plus there is chance
that the enemy might also return attack. But this exemption is not followed by the
nations when it suits them— example, ruso-japanese war, the crimean war, the
Korean War- when it suits their purpose and is militarily and economically
advantageous, they take action. So its basically a rational choice they are making.
They take action when they think that it suits their interests. So can we say that it
is something which is being followed because of psychological belief as there is a
legal obligation to follow it. It all narrows down to what is convenient to the the
nation — this is the reason why there is diff. In America’s response to not target
fishing vessels in the world wars and to target them in the Korean War. Another
example, American example in the east coast vis-a-vis the American action in the
west coast. British action generally vis-a-vis the British action in the crimean war.

west coast. British action generally vis-a-vis the British action in the crimean war.
So the strong navies were taking actions against the fishing vessels if it were
convenient.
b. Coercion- think of a stronger nation vis-a-vis a comparatively weaker nation. So if

we are to look at the evidence in the paquette Havana case, the French were
entering into treaties simply because they were one of the weakest navy of
Europe. The weaker nation was willing to accept these exemption because they
know that they cannot stand up to the stronger navy.
c. Co-operation- exists where 2 countries basically have no interest in breaking this

relative peace (its a case of prisoner’s dilemma). If I dont attack your fishing
vessels and you dont attack my fishing vessels then its best for both of us. I could
be wary what if the other would take action, and similarly the other could be wary
of what if I take action. But in both the situation, the other is also going to take
action in return. The 4th situation being that both of us attack each other, but this
would not help anyone. There is fragile peace injustice which case neither’s
interest is served by breaking it. This also best explains why all the treaties given
in paquete Havana are bilateral treaties because prisoner’s dilemma is best for
bilateral situation.
11. Opino juris is not able to explain why the exemption was followed. Further, rational
choice and these 3 subheadings are able to explain the reason why custom come into
being and then why custom is followed and/or broken when it is.
• Opinio juris doesn’t explain why custom comes into being, but rational choice does. And
similarly is able to explain when it is broken.
• Why the rational actor theory is better to understand CIL- its formations, its following and its
violations?
• Two obvious questions that they can think of that somebody might want to pose to them
would be
1. Well if countries are just going to follow it out of self interest/rational choice, why do
they keep talking about CIL, need for state practice, the idea of opinio juris. They say
its very simple. This “cheap talk” servers in a very important function. It helps in
cooperation. It facilitates coordination. You have to give language. To help in
solidifying the fragile peace, countries talk about these things in terms of rules and laws
and principles and rules of customary laws.
2. Didn’t the US SC decide against the US’s self interest in the Paquete Havana case,
wherein the US captured fishing vessels and the court ordered that they couldn’t under
international law because there was a customary law creating an exemption for fishing
vessels. So isn’t that a statement against the interest of the US? The author say that
there is a principle of “judicial deference to the executive” which was not followed in
this case. Traditionally in international relations vis-a-vis international acts, there is
judicial deference to the executive and that wasn’t followed in this case. But this is a
weak explanation for it. The reading helps us to think of an understanding out of this
traditional construct. In filartiga case— a case of torture(facts discussed earlier). The
court held that yes the person can be tried because there is a customary law against
torture. But there is a clear absence of state practice . This is clearly the US picking out
the convention against torture, some GA resolution and saying that there is a customary
law against torture. This is a clearly an absence of state practise, it lacks consent of
other states, the content is too vague and it has been invoked opportunistically. These
are the 4 characteristic of the Filartiga case. Then they say, think of Pequete Havana,
isn’t there a clear absence of state practice. There are hardly 4 or 5 states whose
practices were discussed. There was certainly a lack of consent. The content was also

practices were discussed. There was certainly a lack of consent. The content was also
vague w.r.t. the definition of “fishing vessels”. And invoked opportunistically as diff
countries invoking the exemption to fishing vessels to suit their self interest. So these 4
characteristics of Filartiga were also characteristics of pequete Havana.
• Lets plot filartiga case on the 3 idea of rational choice
1. coincidence of interest— they say it is in the interest of every nation that almost all
times not to commit gross violations of H.R. its is in the interest of countries that’s why
they follow the customary rule against torture.
2. Coercion— obviously there is countries X and country Y, and one(Y) is a stronger

political/ economical force and because they support this rule against torture, others are
also following it. (US would not enforce customary rule against other powerful nations
like Russia and China because they are not weak nations)
3. Cooperation— the only place where this rule against torture is taken seriously is ECHR
(European Court of Human Rights) one of the better bodies across the world which
does act and react seriously vis-a-vis custom against torture. They follow it because
they are cooperating, not because there is some legal belief that they have that it exists
as an opinio juris.

VCLT//Aust
02 September 2020 14:38
• Book - Vienna Convention on the Law of Treaties (1969) by Anthony Aust
• Why VCLT required?

1. By 1914, there were already perhaps over 8,000 treaties in force. With the
establishment of the League of Nations, the rate of treaty making increased
dramatically. Up to July1944 the League registered 4,822 treaties.
2. Treaties negotiated between non-members of the League are not even in count.
3. Since 1945 (till 2007), some 54,000 treaties have been registered with the United
Nations.
4. There needs to be a system to govern and control such an amount.
• VCLT is thus, "the body of rules which determines whether an instrument is a treaty, how it
is made, brought into force, amended, terminated and operates generally. "
• It is not so concerned with the substance of a treaty (the rights and obligations created
by it)"
• Making of VCLT : Drafted by ILC.

1. The UN General Assembly established the International Law Commission in 1947 with
the object of promoting the progressive development of international law and its
codification.
2. The law of treaties was one of the topics selected by the Commission at its first session
in 1949 as being suitable for codification.
3. Special Rapporteurs appointed : Their task was to draw up a coherent account of the
already well developed customary international law on treaties.
4. The Commission adopted a final set of draft articles in 1966. The United Nations
Conference on the Law of Treaties in Vienna considered them in 1968 and 1969. The
Convention was adopted on 22 May 1969 and entered into force on 27 January 1980
• How has the treaty remained relevant? - Flexibility of VCLT

1. The Convention is now fifty years old but is likely to remain unchanged for many
decades yet.
2. It codified, and to some degree developed, the law as it had evolved through the
practice of states.
3. The intelligence of the Convention’s drafting has enabled states to continue or modify
their practice without distorting or departing from the rules of Convention.
4. This is important since practice has not stood still since 1969. But the Convention’s
rules provide a framework which is sufficiently flexible to accommodate such
developments.
5. In fact, many of the provisions expressly envisage states departing from the rules of the
Convention.
6. Example
a. Article 9(2) states that "The adoption of the text of a treaty at an international
conference takes place by the vote of two thirds of the States present and voting,
unless by the same majority they shall decide to apply a different rule."
b. Article 10(a) - "The text of a treaty is established as authentic and definitive: (a)
by such procedure as may be provided for in the text or agreed upon by the States
participating in its drawing up"
c. Article 11 - "The consent of a State to be bound by a treaty may be expressed by
signature, exchange of instruments constituting a treaty, ratification, acceptance,

approval or accession, or by any other means if so agreed"
• Application of the treaty
1. To States - "The present Convention applies to treaties between States” [ARTICLE 1]

a. The convention shall apply b/w states if they are parties to a treaty where other
subjects of international law are also parties. [ARTICLE 3(c)]
b. Illustration: S1, S2 and IO1 are parties to a treaty. The relation b/w S1 and S2 shall
be governed by VCLT (if they are parties to VCLT).
2. Not between states and int'l org or among int'l org - “… the present Convention does
not apply to international agreements concluded between States and other subjects of
international law or between such other subjects of international law…” [ARTICLE 3]
a. For treaties not exclusively b/w states, the Vienna Convention on the Law of
Treaties between States and International Organizations or between International
Organizations 1986 (VCLT-IO) applies. (see p. 8)
b. Failing which, CIL(customary international law) shall apply. [ARTICLE 3(1)(b)]
3. Certain restrictions - "The present Convention applies to any treaty which is the
constituent instrument of an international organization and to any treaty adopted within
an international organization without prejudice to any relevant rules of the
organization.” [ARTICLE 5]
a. These are signed between states
b. "Without prejudice to…" - means that certain internal rules override new treaties -
Ex: the International Labour Organization Constitution prohibits the making of
reservations to its Conventions. This is because of the unique, trilateral
negotiating structure of ILO: trade unions, employers’ associations and
governments.
4. Only to written agreements - “Treaty means an international agreement concluded

between States in written form...” [ARTICLE 2(1)(a)]
a. This is so because of reasons of clarity and simplicity.
b. But this will not affect the legal force of these agreements. The rules of CIL shall
apply to them. [ARTICLE 3(1)(a)]
c. Example: The dispute between Denmark and Finland about the construction by
Denmark of a bridge across the Store Bælt (Great Belt) was settled in 1992 in a
telephone conversation between the Danish and Finnish Prime Ministers. (see p.
9)
5. No retrospective - “… the Convention applies only to treaties which are concluded by

States after the entry into force of the present Convention with regard to such States.”
[ARTICLE 4]
• VCLT and CIL
1. Can treaties create custom? - Yes. If a new rule of international law created by a treaty
is followed in the practice of non-parties, it can lead to the evolution of a customary rule
which will be applicable as between such non-parties, and between them and the
parties. (see North Sea Continental Shelf Cases, ICJ Reports (1969), p. 3, paras. 70–85).
This can also happen even before treaty enters into force. See UNCLOS 1982
2. Does VCLT embody CIL?

a. It is relied upon in the day-to-day affairs by many non-parties who never give (or
are asked for) an explanation for the same. Thus, it is safe to assume that the
VCLT does embody CIL. However, the only way to know for sure is when
something is litigated upon. “There has as yet been no case where the Court has
found that the Convention does not reflect customary law.”

found that the Convention does not reflect customary law.”
b. The ICJ in the Kasikili/Sedudu Island (Botswana/Namibia) case [1999] interpreted

an 1890 treaty b/w Great Britain and Germany using Articles 31 & 32 of the
VCLT as they represented, per the court, CIL
c. The ICJ in the Gabcikovo-Nagymaros (Hungary/Slovakia) case noted that the

rules of termination and suspension, impossibility of performance and rebus sic
stantibus (Articles 60–62) reflect CIL. The court was looking at Hungary’s non-
performance of a 1977 treaty with Czechoslovakia.
3. Inversely, a new and emerging rule of CIL will supplant (supersede) a treaty provision
on that point. Ex: Fisheries Jurisdiction (United Kingdom v. Iceland) case [1974 ICJ 3,
para 49] – the court ruled that the 12 nautical mile fishing zone/territorial waters limit
claimed by Iceland had indeed become CIL despite the Geneva convention 1958
claiming a freedom of the high seas.
• What is a treaty?
1. Article 2(1)(a) - “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 particular designation.”
a. "An international agreement"

i. It could be bilateral, plurilateral or multilateral; it could be regional or
universal; it could be inter-state, inter-governmental or inter-ministerial. As
long as there is an international agreement, subject to other conditions of the
definition it could be a treaty under the VCLT.
b. "Concluded between states"

i. However, an agreement b/w a state and a company is not a treaty. The ICJ
decided this in the Anglo-Iranian Oil Company (United Kingdom v. Iran)
case [1952 ICJ 89].
ii. Certain treaties may allow non-state actors to be a party. Example:
UNCLOS Article 305. (see generally, pp. 73-74). Would VCLT apply to
this treaty?
c. "In written form"
d. "Governed by international law"

i. This is the element of intention to create obligations under international law.
ii. The Aegean sea continental shelf (Greece/Turkey) case 1978 ICJ 3, at 39-44.
Joint communique b/w the two heads of state lacked a meeting of minds.
Turkey intended to continue negotiations; failing which it would have
wanted an agreement to send the case to the ICJ.
iii. Though, sometimes, states can make agreements under domestic laws - This
is generally done when the subject-matter of the agreement is exclusively
commercial. Example: agreements providing loans from S1 to S2. (see
generally, p. 30, n. 96) or When a state leases land from another for an
embassy. (see p. 30, n. 95). Will VCLT be applicable here?
e. "Embodied in single instrument or two..."

i. Single instrument = classic form of treaty.
ii. Two or more related instruments = modern, less formal ways like an
exchange of notes. This will usually consist of an initialling note and a reply
note
iii. Even double-exchange of notes can be treaties Ex: Qatar/Bahrain case,
1994 ICJ 112 :Saudi Arabia having agreed to help resolve territorial disputes

1994 ICJ 112 :Saudi Arabia having agreed to help resolve territorial disputes
between Qatar and Bahrain sent them letters in identical terms proposing
certain settlement procedures. Each wrote to Saudi Arabia accepting the
proposal who then announced that the two states had agreed to go to the ICJ.
Although 3 states are involved, it is a treaty b/w two - Qatar and Bahrain.
f. "Whatever its particular designation"

i. “In itself the name does not determine the status of the instrument” - naam
par mat jaa bro.
ii. Ex : The UN Charter is a treaty, while the OSCE Charter of European
Security is not (its only a MoU).
g. VCLT does not need a treaty to be signed

i. Article 11 - "The consent of a State to be bound by a treaty may be
expressed by signature, exchange of instruments constituting a treaty,
ratification, acceptance, approval or accession, or by any other means if so
agreed"
ii. Ex: Treaties adopted by FAO Conference are only subject to acceptance by
member states.
iii. "by other means" - The treaty establishing the prep-com of the CTBT 1996
was effected by a resolution of states that had signed the CTBT. (pp. 24-25)
• Capacity to conclude treaties

1. Article 6 - "Every state possess capacity to conclude a treaty"
2. Making treaty as an important aspect of statehood - “The making of treaties is one of
the oldest and most characteristic exercises of independence or sovereignty on the part
of States.”
3. Montevideo convention on rights and duties of states 1933 - The state as a person of
international law should possess the following qualifications: permanent population; a
defined territory; government; and capacity to enter into relations with the other states.”
[ARTICLE 1]
4. Thus, statehood primary for VCLT?
• How to make a treaty? - Four step process
1. Step I : Present 'full powers'
a. Be able to do what you promise under the treaty

b. “a document emanating from the competent authority of a State designating a
person or persons to represent the State for negotiating, adopting or
authenticating the text of a treaty, for expressing the consent of the State to be
bound by a treaty, or for accomplishing any other act with respect to a treaty"
c. All of these are possibilities of acts that one could carry out with full powers.
However, what person X can do on behalf of state S1 shall depend on the full
powers document he or she carries.
d. "Accomplishing any other act" - These could include: acts with respect to treaty
status, such as acts declaring invalid, terminating or withdrawing from, or
suspending the operation of, a treaty [ARTICLE 67]; declarations or notifications
in the nature of binding instruments which extend or modify the obligations of the
state, such as a notification of provisional application or territorial extension.
e. Importance of full power - It is “is a fundamental safeguard for the
representatives of other states that they are dealing with a person with the
necessary authority.”
f. Who can issue full power ?

i. “a document emanating from the competent authority of a State….”
[ARTICLE 2(1)(c)]
ii. It will depend on the Constitution and the practice of each state. However,
internationally recognized practice suggests one among the BIG THREE -
the head of state, head of government or foreign minister
iii. The document must bear the signature of the big three. It cannot be signed
‘on behalf’ of them.
g. Who represents a state?
i. General Rule : Article 7(1) : “A person is considered as representing a
State… if: (a) He produces appropriate full powers; or (b) It appears from
the practice of the States concerned or from other circumstances that their
intention was to consider that person as representing the State for such
purposes and to dispense with full powers.”
ii. Special Rule : Article 7(2)
1) "the following are considered as representing their State: (a) Heads of
State, Heads of Government and Ministers for Foreign Affairs, for the
purpose of performing all acts relating to the conclusion of a treaty;
(b) Heads of diplomatic missions, for the purpose of adopting the text
of a treaty between the accrediting State and the State to which they
are accredited; (c) Representatives accredited by States to an
international conference or to an international organization or one of
its organs, for the purpose of adopting the text of a treaty in that
conference, organization or organ"
2) Under special rule, no full powers are needed from “Heads of State,
Heads of Government and Ministers for Foreign Affairs, for the
purpose of performing all acts relating to the conclusion of a
treaty….” [ARTICLE 7(2)(a)]
3) Adoption, authentication, expressing consent to be bound
4) No full powers is needed from “Heads of diplomatic missions, for the
purpose of adopting the text of a treaty between the accrediting State
and the State to which they are accredited.” [ARTICLE 7(1)(b)]
5) No full powers is needed from “Representatives accredited by States
to an international conference or to an international organization or
one of its organs, for the purpose of adopting the text of a treaty in that
conference, organization or organ.” [ARTICLE 7(1)(c)]
iii. What if a person acts without ‘full powers’?
1) “An act relating to the conclusion of a treaty performed by a person
who cannot be considered under article 7 as authorized to represent a
State for that purpose is without legal effect unless afterwards
confirmed by that State.” [ARTICLE 8]
2) Confirmation may be in form of ratification of the treaty, or its
publication or implementation
2. Step II - Adoption of text of the treaty : Article 9
a. The adoption of the text of a treaty takes place by the consent of all the States
participating in its drawing up except as provided in paragraph 2.
b. "2. The adoption of the text of a treaty at an international conference takes place

b. "2. The adoption of the text of a treaty at an international conference takes place
by the vote of two thirds of the States present and voting, unless by the same
majority they shall decide to apply a different rule.” - 2/3 majority rule
i. This was adopted by the ILC based on the post WW-II practice in the 1960s.
ii. Since then, a rule of consensus has emerged.
1) What is consensus ? - Though there is no agreed definition, Aust notes
that it has three main features:
a) it is not the same as unanimity
b) a state can join a consensus even if it could not vote in favor (i.e.
mere silence could count as absence of formal objection); and
c) it is not incompatible with ‘indicative voting’ (a straw poll)
d) Example: he notes that “for the purposes of decision-making in
the Council of the International Seabed Authority, consensus is
defined in [UNCLOS] as ‘the absence of any formal objection."
e) This is particularly true for law-making treaties like various
Human Rights instruments.
f) The idea is that treaties formulated by widespread acceptance are
expected to be more effective.
g) Some agreements have even sought unanimity. Example:
negotiation of texts within the UN Disarmaments Commission.
2) Importance of consensus
a) Most treaties today will try to create a consensus, failing which
they shall take the fall-back option of a vote [as provided in A.
9(2)]. This can sometimes lead to a pyrrhic victory if the state
blocking consensus is critical to the success of the treaty.
b) India refused to adopt the Comprehensive Test Ban Treaty
(CTBT) 1996. The matter was decided by a 158-3 vote in favour
of its adoption. It is yet to enter into force as 44 named states,
including India, must ratify it. (p. 88)
3. Step III : Authenticating of the text of a treaty

a. Important - To know what precisely is the text of the agreement
b. Ex : ICC draft mein errors
i. The final text adopted for the Rome Statute creating the ICC in 1998 had
some cross-referencing errors which could have had substantive effects if
not for the authentication process.
ii. Article 5-8bis of the Rome Statute are fundamentally important. They
enumerate crime within jurisdiction of the court (A. 5), and define these
crimes (A. 6-8bis).
iii. Article 121(5) which deals with amendments, in its original form, had stated
that any amendment to A. 5 would come into effect in the stated manner. It
omitted to refer to A. 6-8bis. The result would have been that there would
have been no way in which any amendment to those articles could have been

have been no way in which any amendment to those articles could have been
effected. (p. 335)
c. Ex: Error in CTBT
i. The text of attachments to the CTBT 1996 had several errors. The location
or names of some monitoring stations were wrong, and in some cases the
location had been found to be unsuitable.
ii. This came to light after authentication. Whereas, the former were considered
errors and corrected u/A. 79; the latter involved substantive change and had
to be changed through the amendment procedure [u/A. 40]. (p. 336)
d. How to do authentication?
i. Past - Usually done by signing the treaty
ii. Present - There might be multilateral treaties etc that need to be translated
before signing - hence Article 10 governs.
1) "The text of a treaty is established as authentic and definitive: (a) By
such procedure as may be provided for in the text or agreed upon by
the States participating in its drawing up; or (b) Failing such
procedure, by the signature, signature ad referendum or initialing by
the representatives of those States of the text of the treaty or of the
Final Act of a conference incorporating the text."
iii. What is the 'final act' in Section 10 ? - Mentioned only in ARTICLE 10(b).
It says a treaty may be authenticated by signing on the ‘final act’. It is a
formal statement or summary of the proceedings of a diplomatic conference.
It will include basic facts about the conference, such as its purpose; which
states attended; who presided; who chaired the various committees and their
composition. Treaties adopted by the conference and other related
documents, such as resolutions and agreed or national interpretative
statements will be attached.
4. Step IV : Consent
a. Article 11 - “The consent of a State to be bound by a treaty may be expressed by
approval or accession, or by any other means if so agreed.”
i. Consent by signature
1) It must be definitive signature (as opposed to simple signature - which
requires confirmation/ratification thereafter).
2) Whether a signature will comprise consent will depend on if…
a) “(a) The treaty provides that signature shall have that effect; (b)
It is otherwise established that the negotiating States were
agreed that signature should have that effect; or (c) The intention
of the State to give that effect to the signature appears from the
full powers of its representative or was expressed during the
negotiation.” [ARTICLE 12(1)]
3) Advantage of consent by sign - A definitive signature effectively
prevents a party from later claiming that the treaty is not in force
because it has not been ratified. In 1990, Iraq argued that lack of
ratification meant that it had not consented to the Iraq–Kuwait. Agreed
Minutes of 1963 which recognized their joint boundary. The Security
Council disagreed with Iraq as the treaty did not provide for

Council disagreed with Iraq as the treaty did not provide for
ratification and had been registered by Kuwait with the United Nations
soon after it had been signed. (p. 96)
4) Signature Ad Referendum - Type of a simple signature (as opposed to
definitive signature)?
a) If the treaty is to come into force by signature but state S1 isn’t
sure if it wishes to sign the treaty or if it needs to get a domestic
approval etc., it may sign the treaty ad referendum. If confirmed
later, such a signature shall constitute a full/definitive signature
for the treaty. [ARTICLE 12(2)(b)]
b) The confirmation may take any form, but it can never be oral.
c) “In principle, the signature should be effective from the date of
signature, not confirmation: unlike ratification, confirmation is
of the signature, not of the treaty. But it is open to the negotiating
states to agree to a later date.”
5) Place of signature - A treaty may be signed at two separate places.
“For political reasons, separate original copies of a treaty between
India and Pakistan were signed separately but at the same time in their
respective capitals…. Each minister signed one original in his capital
and sent it to the other minister. They then telephoned each other to
say that they were ready to sign the original each had received from the
other. Each then did so, dating and retaining that original.”
ii. Consent by Exchange of instruments constituting a treaty
1) Article 13 - “The consent of States to be bound by a treaty constituted
by instruments exchanged between them is expressed by that exchange
when: (a) The instruments provide that their exchange shall have that
effect; or (b) It is otherwise established that those States were agreed
that the exchange of instruments shall have that effect.”
2) It is the act of exchange that constitutes consent.
3) However, the notes may provide that the agreement constituted by the
exchange will not enter into force until each has informed the other
that its constitutional formalities (or suchlike) have been completed.
This amounts to a kind of ratification.
iii. Consent by ratification

1) A ratification is “the international act so named whereby a State
establishes on the international plane its consent to be bound by a
treaty.” [ARTICLE 2(1)(b)]
2) Its an international act.
3) It might be so that the approval of the parliament is required. This
approval may also be misleadingly be referred to as ratification.
However, this is a domestic process/act.
4) Article 14(1) - “1. The consent of a State to be bound by a treaty is
expressed by ratification when: (a) The treaty provides for such
consent to be expressed by means of ratification; (b) It is otherwise
established that the negotiating States were agreed that ratification
should be required; (c) The representative of the State has signed the
treaty subject to ratification; or (d) The intention of the State to sign
the treaty subject to ratification appears from the full powers of its
representative or was expressed during the negotiation.”

representative or was expressed during the negotiation.”
5) When S1 signs a treaty ‘subject to ratification’, then the consent
functions from the date of ratification.
6) Compare to signature ad referendum.
7) In the interim, the signature may have legal effects [see ARTICLE 18]
8) Why Ratify?
a) A treaty may require legislation under domestic law [India &
UNCRPD]; or
b) Even if there is no need for a legislation, the constitution may
require parliamentary approval; or
c) In absence of either, a state may wish to take time to consider the
implications of the treaty [USA & Kyoto Protocol to the
UNFCCC].
9) Does ratification mean treaty is binding upon a state?
a) No. Ratification (like signature, exchange etc.) is only a means of
expressing consent to be bound by a treaty. [ARTICLE 11]
b) The treaty has to enter into force for that state.
c) Example: see A. 84, VCLT - When the treaty enters into force for
S1, it shall become a party to the treaty. [ARTICLE 2(1)(g)]
10) By what time a state needs to make ratification?
a) No such period in which ratification has to be made.
b) The USA ratified the Geneva Convention 1948 in 1988.
c) The UK ratified the Hague Convention on Pacific Settlement of
Disputes 1907 in 1987.
11) Ratification must be unconditional; though reservations may be
attached.
12) A state may ratify a part of a treaty if that is permitted by the treaty or
is agreed upon by the contracting states. [ARTICLE 17(1)]. Example:
Conventional Weapons Convention 1980 has three original Protocols
(not optional) and requires that on depositing an instrument of
ratification a state must notify its consent to be bound by at least two
of them. If this is not done, the instrument will not be effective.
13) What does ratification entail physically?
a) It is: “(1) the execution of an instrument of ratification by the
executive and (2) either its exchange for the instrument of
ratification of the other state (bilateral treaty) or its lodging with
the depositary (multilateral treaty).”
b) Date of consent (bilateral) = exchange of instrument;
c) Date of consent (multilateral) = deposit of instrument;
d) Neither is necessarily the date of entry into force.
14) Who signs ratification?
a) Preferably, one of the Big three
b) If anyone else signs, then full powers empowering him/her shall
have to be produced.
15) Withdrawing an instrument of ratification before it enters into force
a) There is little authority and scant practice. Even this seems to be
conflicting. However, Aust notes that “there would seem no
reason why this cannot be done.”

reason why this cannot be done.”
b) At the Vienna Conference, one delegate referred to the
‘sovereign right of a State to withdraw from the treaty at any time
before it finally became binding’. No delegate challenged this
assertion. In 1958, Spain withdrew an instrument of accession
two months after it had been deposited, but before the treaty had
entered into force. At the same time, it deposited a new
instrument containing a reservation. In 1999 and 2000, Italy and
Luxembourg, respectively, withdrew their instruments of
ratification of the Fish Stocks Convention 1995, which had been
deposited prematurely. They later ratified it along with their EC
comrades.
16) Vienna Formula
a) Vienna formulas are nothing but devices in hands of authority to
decide whether a prospective party that is willing to sign/ratify a
treat is elligible to do so on not. Usually, treaties are open to all
states (hence it is called the states formula) but sometimes, the
membership is limited to certain states for certain treaties. In that
case, it might get difficult to ascertain who is elligible or not.
b) Hence, VCLT gave a formula for itself, defining who all are
elligible to sign it
c) "The present Convention shall be open for signature by all States
Members of the United Nations or of any of the specialized
agencies or of the International Atomic Energy Agency or parties
to the Statute of the International Court of Justice, and by any
other State invited by the General Assembly of the United
Nations to become a party to the Convention, as follows: until 30
November 1969, at the Federal Ministry for Foreign Affairs of
the Republic of Austria, and subsequently, until 30 April 1970, at
United Nations Headquarters, New York.
— Vienna Convention on the Law of Treaties, Article 81, Signature"
iv. Consent by Acceptance or approval
1) Article 14(2) - The consent of a State to be bound by a treaty is
expressed by acceptance or approval under conditions similar to those
which apply to ratification.”
2) A less formal method than ratification. Helps skip past the
requirements of domestic approval etc.
3) Rules applicable to ratification, apply equally to acceptance or
approval. Ex: Consent to treaties within the FAO is to be made by way
of acceptance. (pp. 109-110)
v. Consent by Accession
1) Generally every treaty will have a deadline for signature [see
ARTICLE 81 VCLT]. If a state S1 has signed the treaty within this
period, then it may ratify, accept or approve; hasn’t signed within the
stated time period, it may accede to the treaty
2) Article 15 - The consent of a State to be bound by a treaty is expressed
by accession when: (a) The treaty provides that such consent may be
expressed by that State by means of accession; (b) It is otherwise
established that the negotiating States were agreed that such consent
may be expressed by that State by means of accession; or (c) All the
parties have subsequently agreed that such consent may be expressed
by that State by means of accession.
3) There can be pre-conditions to accession

a) “As with the right to sign (see ARTICLE 81, discuss Vienna
formula, pp. 115-116), the right to accede may be restricted to a
specified category or categories of states and may be made
subject to conditions or the consent of other states.”
b) By way of Article 22 of the Antarctic Treaty Environmental
Protocol 1991 accession is open only to states that are parties to
the Antarctic Treaty. The Antarctic Marine Living Resources
Conservation Convention 1980 is only open for accession to
states interested in research/harvesting activities in relation to the
marine living resources to which the Convention applies.
4) Accession can be by invitation - The CoE National Minorities
Protection Framework Convention 1995 [in Article 29(1)] provides
that after its entry into force ‘the Committee of Ministers of the
Council of Europe may invite to accede to the Convention. . . any non-
member State of the Council of Europe.’
5) The rules on deposit of instruments of ratification (or acceptance or
approval) apply also to instruments of accession; and, unless the treaty
provides otherwise, accession has the same effect as ratification.”
vi. Consent by other means
1) The Text establishing the Preparatory Commission of the CTBT was
adopted by a resolution of the states which had signed the CTBT and
was effective immediately without any further act by those states.
2) Similarly, though the original members of the UN Charter had to sign
and ratify to be a member, any new states will be admitted by…
3) Article 4, UN charter - 1. Membership in the United Nations is open to
all other peace-loving states which accept the obligations contained in
the present Charter and, in the judgment of the Organization, are able
and willing to carry out these obligations.
4) The admission of any such state to membership in the United Nations
will be effected by a decision of the General Assembly upon the
recommendation of the Security Council.
• Rights and Obligations prior to a treaty entering into force

1. Provisional Application - Article 24(4) - “The provisions of a treaty regulating the
authentication of its text, the establishment of the consent of States to be bound by the
treaty, the manner or date of its entry into force, reservations, the functions of the
depositary and other matters arising necessarily before the entry into force of the treaty
apply from the time of the adoption of its text
2. Article 18 - Obligation to not defeat the objects and purposes of the treaty - “A State is
obliged to refrain from acts which would defeat the object and purpose of a treaty
when: (a) It has signed the treaty or has exchanged instruments constituting the treaty
subject to ratification, acceptance or approval, until it shall have made its intention
clear not to become a party to the treaty; or (b) It has expressed its consent to be bound
by the treaty, pending the entry into force of the treaty and provided that such entry into
force is not unduly delayed.”
3. Whereas one deals with situations where:
a. No consent has been given to be bound. This binds the state till it expresses
intention not to become a party.

intention not to become a party.
b. Consent to be bound has been given but the treaty has not entered into force. This
binds the state till the entry into force is deemed to be unduly delayed.
4. Duty under Article 18(a) - “A State is obliged to refrain from acts which would defeat
the object and purpose of a treaty when: it has signed the treaty or has exchanged
instruments constituting the treaty subject to ratification, acceptance or approval, until
it shall have made its intention clear not to become a party to the treaty….”
a. This doesn’t mean that the state must comply with the treaty, or at least do
nothing inconsistent with its provisions.
b. The duty is ‘to refrain’ and nothing more. Example: USA and ICC statute.
c. The legal effect is like the withdrawal of an instrument of ratification before entry
into force.
5. Duty under Article 18(b)
a. Once a state has consented to be bound, then it has a duty not to violate the
treaty’s object and purpose. Provided that the entry into force isn’t unduly
delayed.
b. There has been confusion on the content of this duty, as there is hardly any state
practice. Aust relies on discussions in the ILC and views of writers that the duty is
the same as that under 18(a)
c. “A state is not required to comply in any general sense with a treaty or its object
and purpose before it enters into force. The obligation is only to ‘refrain’ (a
relatively weak term) from acts which would ‘defeat’ (a strong term) the object
and purpose of the treaty.” (pp. 118-119) He provides some examples:
d. A treaty provides for the return of certain objects, which are then destroyed by the
possessor state before entry into force.
e. A treaty provides for territory to be ceded. Before entry into force the ceding state
transfers part of the territory to a third state.
f. Several states sign a treaty, each undertaking to reduce their existing armed forces
by one-third. Entry into force has not been unduly delayed. After ratifying the
treaty, a state then announces that it has embarked on a long-term program to
double its forces.
g. The position would be different if the state had signed subject to ratification: its
announcement would then amount in effect to an expression of its intention not to
become a party. (p. 119)
• Reservations to treaties
1. Interpretive Declaration - “During the course of the negotiation of a multilateral treaty,
there will often be differences of view as to the meaning of a particular provision. If
these cannot be resolved, a delegation may make a formal statement expressing the
interpretation favoured by its government.” (p. 127)
a. These will become a part of the travaux
b. “A state may feel it necessary or desirable to repeat its interpretation, usually at
the time of signature or ratification.”
c. This is an interpretative declaration ––“a unilateral declaration, however phrased
or named, made by a state whereby it purports to clarify the meaning or scope
attributed to the treaty or certain of its provisions.”

attributed to the treaty or certain of its provisions.”
d. Purpose of Interpretative Declaration - It is very often to establish an
interpretation of the treaty which is consistent with the domestic law of the state
concerned.
i. Example: when ratifying the CRC 1989 , UK made an interpretative
declaration w.r.t the term parents ’ as only those persons who, as a matter of
national law, are treated as parents
e. Effect of Interpretative Declaration
i. As it does not attempt to modify the treaty i.e. it is not a disguised
reservation ), it raises no problem. It is no more than a statement of general
policy or informs the other party as to how the declarant state will
implement the treaty.
ii. Unless, the other parties make conflicting declarations or indicate their
disagreement, they may, depending on the circumstances, be regarded as
having tacitly accepted it. It become an element in interpretation of the
treaty. [ARTICLE 31 & 32 will apply]
2. Disguised Reservations
a. A state may make a declaration which is in fact an attempt ‘ to exclude or to
modify the legal effect of certain provisions of the treaty in their application to
that state.
b. This may be done because the treaty prohibits reservations , or maybe because it is
politically more acceptable for the S O to not appear to be attaching conditions on
its participation.
c. Examples
i. On ratifying the Seabed Arms Control Treaty 1971, Yugoslavia made a
declaration stating that if a party wished to exercise inspection rights under
the Treaty about the continental shelf of another party, it had to give it
advance notice UK responded that this was a reservation under the name of
an interpretation. It formally objected to it stating it was incompatible with
the object and purpose of the Treaty.
ii. On ratification of the Chemical Weapons Convention 1993, the US stated
that for the purposes of the Annex on Implementation and Verification it
would be a ‘condition’ that no sample collected by an inspection team could
be removed from its territory for analysis . The Annex does not envisage any
such restriction. Although not labelled ‘reservation’, the statement clearly
went beyond interpretation and amounted to a reservation.
3. Derogations
a. Statements specifically authorized by a treaty by which a party is able to exclude
certain provisions in their application to it during a particular period .
b. Example
i. Article 4 , ICCPR 1 . In time of public emergency which threatens the life of
the nation and the
existence of which is officially proclaimed, the States Parties to the present Covenant
may take measures derogating from their obligations under the present Covenant to the
extent strictly required by the exigencies of the situation, provided that such measures
are not inconsistent with their other obligations under international law and do not
involve discrimination solely on the ground of race, colour, sex, language, religion or

involve discrimination solely on the ground of race, colour, sex, language, religion or
social origin
4. Reservation - Article : a unilateral statement, however phrased or named, made by a

State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to modify the
legal effect of certain provisions of the treaty in their application to that State
a. No reservation in Bilateral treaties :
i. A multilateral treaty b/w S 1 , S 2 & S 3 has five provisions. S 2 makes a
reservation against provision 4. Between S 1 & S 3 , the entire treaty applies,
i.e. having five provisions makes sense.
ii. However, in a bilateral context if S 1 & S 2 form a treaty with five
provisions but one of them finds provision 4 problematic (i.e. makes a
reservation against it), then having that provision in the treaty makes no
sense. They need to continue negotiations till they agree on all terms to
create a valid agreement.
iii. Example - UK US Extradition Treaty 1985. The two countries agreed on a
treaty. Under the American constitution, the Senate must pass every treaty. It
suggested certain changes before clearing the treaty. The US government
informed UK about proposed changes through a note, ( i.e. it continued the
negotiations, not put in reservations ). The UK government agreed to these
also through a note. The initial treaty and the notes exchanged together form
the final treaty.
iv. Why reservations in Multilateral treaties? - Most multilateral treaties are
adopted by consensus, inevitably some, or even many, of the negotiating
states will be dissatisfied with at least some aspects of the resulting text. But,
for political reasons, a state may be reluctant to stand in the way of reaching
consensus and may even sign a treaty despite some unhappiness at the result.
If it is greatly dissatisfied, it will have the option of not becoming a party. If
this would be difficult politically, a state may seek to adjust certain
provisions in their application to it so as to make it possible for it to become
a party: that is, it will formulate and enter reservations
5. General Rule : Reservations are not prohibited

a. Article : A State may, when signing, ratifying, accepting, approving or acceding
to a treaty, formulate a reservation unless: (a) The reservation is prohibited by
the treaty; (b) The treaty provides that only specified reservations, which do not
include the reservation in question, may be made; or (c) In cases not falling under
sub paragraphs (a) and (b), the reservation is incompatible with the object and
purpose of the treaty.”
b. Ex : No reservations : Rome Statute of the ICC 1998, Article 120 ––“No
reservations may be made to this statute.” The ILO Constitution prohibits any
reservations.
c. Ex : Specified reservations : S R may exclude certain specific subjects from the
scope of the treaty. The Optional (Second) Protocol 1989 to the ICCPR in Article
2 permits a reservation to be made to allow for capital punishment in the case of
serious military offences in wartime. S R may make a reservation in respect of one
or more specified articles. The CoE Regional or Minority Languages Charter 1992
in Article 21(1) provides that no reservation may be made, except to Article 7(2) -
(5)
d. Ex: Reservation Incompatible : This applies only when the treaty doesn't prohibit
reservations [ 19 (a)] or the reservations allowed aren't specified [ 19 (b)]. Torture
Convention 1984 sought to exclude torture of suspected terrorists. Any reservation
to this would be a clear case of incompatibility. In 1988, Chile made a reservation
designed to permit an alleged torturer to plead the defence of superior orders .
After several objections that the reservation was incompatible, it was withdrawn.
The final text of VCLT has no reservations provision. In 1997, Guatemala made
certain reservations [ that A. 27 will not apply w.r.t their constitution ] which

certain reservations [ that A. 27 will not apply w.r.t their constitution ] which
called into question well established rules of CIL codified in the Convention.
Since this rule is fundamental to the law of treaties, such a reservation would
plainly fail the compatibility test and some states lodged objections to it.
e. We then check whether the reservation made is compatible with the object and
purpose of the treaty. The state practice on this count is very patchy and uncertain.
As treaties become longer and more complex, identifying the object and purpose
of a treaty ( like UNCLOS ) is virtually impossible. Aust suggests that the only
solution may be to break down such a convention into its various subjects, such as
high seas, straits, continental shelf, etc.
f. Acceptance of and objection to reservations
i. Even if a reservation is not prohibited by ARTICLE19, another state may
still object to it on any ground ( they are all sovereigns after all importance
of consent in IL
ii. However, ( before 1951 ) acceptance of the reservation by all other states
was needed for it to become effective the rule was unanimity
iii. In 1951 , the ICJ in an advisory op. on certain reservations to the Genocide
Convention noted: 1. If a reservation has been objected to by one or more
parties, but not by others, S R will be a party, provided the reservation is
compatible with the object and purpose. 2. If a party objects to a reservation
because it considers it incompatible with the object and purpose, S O may
consider S R as not a party. 3. If a party accepts a reservation as being
compatible with the object and purpose, S A may consider S R as a party.
g. Moving from unanimity
i. At first, it was feared that pt. ( 2 ) & 3 ) will cause fragmentation of IL. The
compatibility test was deemed subjective and unworkable.
ii. However, the process of decolonization showed that unanimity was
impractical. The basic approach of the advisory op. found favour with the
ILC.
h. The Rules of Acceptance and objection : ARTICLE 20: “ A reservation expressly
authorized by a treaty does not require any subsequent acceptance by the other
contracting States unless the treaty so provides.” 2. “ When it appears from the
limited number of the negotiating States and the object and purpose of a treaty
that the application of the treaty in its entirety between all the parties is an
essential condition of the consent of each one to be bound by the treaty, a
reservation requires acceptance by all the parties.”
i. Example : Antarctic treaty : 3. “ When a treaty is a constituent instrument of
an international organization and unless it otherwise provides, a reservation
requires the acceptance of the competent organ of that organization.”
i. If it is not plurilateral or constitutive treat and if reservation is not expressly
permitted then per 20(4) “(a) acceptance by another contracting State of a
reservation constitutes the reserving State a party to the treaty in relation to that
other State if or when the treaty is in force for those States; (b) an objection by
another contracting State to a reservation does not preclude the entry into force of
the treaty as between the objecting and reserving States unless a contrary intention
is definitely expressed by the objecting State; c) an act expressing a States consent
to be bound by the treaty and containing a reservation is effective as soon as at
least one other contracting State has accepted the reservation.
j. If S 1 , S 2 , S 3 , S 4 , S n
→ S 1 , S 2 , S 3R , S 4 , S n
→ S 1 , S 2 , S 3R , S 4A , S n
Then S
1 , S 2 & S 4 are parties, but so are S 3R & S 4A
•
If S 1 , S 2 , S 3 , S 4 , S n
→ S 1 , S 2 , S 3R , S 4 , S n
→ S 1 , S 2O , S 3R , S 4A , S n
Then S

Then S
1 , S 2 & S 4 are parties, so are S 3R & S 4A
But
S 2O & S 3R can also be parties; unless S 2O specifically
objects. Rarely do states express such an intention (Why?
See pp. 146 150).
•
Thus, it is possible in a multilateral treaty that no every
party is bound to every other party.
ACCEPTANCE TO
RESERVATION
CAN BE TACIT
[ARTICLE 20(
•
•“For the purposes of paragraphs 2 and 4 and unless the
treaty otherwise provides, a reservation is considered to
have been accepted by a State if it shall have raised
no objection to the reservation by the end of a period of
twelve months after it was notified of the reservation or
by the date on which it expressed its consent to be bound
by the treaty, whichever is later.”
•
Aust believes that this provision is most definitely not
representative of CIL. It has never been state practice of
S O to give close attention to subject of reservations. (p.
142)
LEGAL EFFECTS
OF RESERVATION AND OF
OBJECTIONS TO RESERVATIONS [ARTICLE 21
•
1 . The reservation not prohibited under 19 , not objected under 20 , and procedurally
correct under 23 )
modifies for:
(a) S
R in its relations with S A the provisions of the treaty to which the reservation relates to
the extent of the
reservation; and
(b) modifies those provisions to the same extent for S
A in its relations with S R
•
2 . The reservation does not modify the provisions of the treaty for the other parties to
the treaty as
between themselves.
•
3 . When S O has not opposed the entry into force of the treaty between itself and S R ,
the provisions to
which the reservation relates do not apply as between the two states to the extent of the
reservation.
CONSTITUTIONAL
RESERVATION ( pp .
146 147)
•
Generally made in relation to human right treaties.
•
These reservations generally imply that the constitution of the

These reservations generally imply that the constitution of the
party (S R ) shall prevail over the treaty
Prime example
USA in relation to the Genocide
Convention , where its reservation states: “nothing in the
Convention requires or authorizes legislation or other
action by the United States of America prohibited by
the Constitution of the United States as interpreted by
the United States.”
•
Clearly, it needs to be seen whether such reservations pass the
compatibility test [ set out under 19(c) c)]. However, for that
someone needs to object to it on that ground.
CURIOUS CASE OF
OBJECTIONS TO
CONSTITUTIONAL
RESERVATIONS
•
Yet, when a party (S R ) makes such a reservation; though other states will
object (S O ), they will not ask for withdrawal of reservation by S R on the
ground that is against the object and purpose [ therefore, allowing treaty to
continue b/w the two states per 20(4)(b); having effect as mentioned in
21(3) 3)].
Instead they object to the reservation by claiming it is invoking
internal law [ARTICLE 27], or that the reservation is vague
leaving S O uncertain as to extent of obligation undertaken.
•
Aust believes that “ it is understandable that most S O are reluctant to
take the position that the treaty will not be in force between it and S R
unless and until the reservation is withdrawn. As fellow parties, they may
feel better able to persuade S R to bring its laws and practices into line
with the treaty and withdraw the reservation.” reservation.”(pp. 147 148)
•
As such, these continue to plague HR treaties. See USA res./ICCPR.
PROCEDURE
REGARDING
RESERVATIONS
[ARTICLE
“
1. A reservation, an express acceptance of a reservation and an objection to a
reservation must be formulated in writing and communicated to the
contracting States and other States entitled to become parties to the treaty.
2. If formulated when signing the treaty subject to ratification, acceptance or
approval, a reservation must be formally confirmed by the reserving State
when expressing its consent to be bound by the treaty. In such a case the
reservation shall be considered as having been made on the date of its
confirmation.
3. An express acceptance of, or an objection to, a reservation made previously
to confirmation of the reservation does not itself require confirmation.
4. The withdrawal of a reservation or of an objection to a reservation must be
formulated in writing.”
WHEN SHOULD A
RESERVATION BE
MADE?
A reservation may be made

A reservation may be made
at the time of expressing
consent to be bound. Both articles 2 1 )(d) and 19 clearly
state that it may be formulated w]hen signing, ratifying,
accepting, approving or acceding to a treaty
Can a different rule exist within an IO? [see p.
154
RESERVATION MADE WHILE SIGNING SUBJECT TO

RATIFICATION, ACCEPTANCE OR APPROVAL…
•
Must be confirmed by S R at time of ratification, acceptance or approval. It will be
considered as being made on date of such confirmation. [ARTICLE 23(2)]
•
This is important for calculating the 12 months required for tacit acceptance of
reservation u/20(5). (p. 154)
HOW MUST A
RESERVATION BE
MADE?
•
A reservation, or an express acceptance of a
reservation, must be made in writing and
communicated in practice, by the depositary ) to the
contracting states and other states entitled to become
parties to the treaty. [ARTICLE 23(1)]
Same rule applies to an objection.
WHO CAN
OBJECT TO A
RESERVATION?
•
A contracting party, i.e. one who has itself consented to be bound by
the treaty.
•
Once a state becomes a contracting party, it may object to any
reservation from the past or in the future. (p. 155)
•
If an objection is made to a reservation which is itself subject to
confirmation, then upon such confirmation there is no need to re
iterate the objection. [ARTICLE 23(3)]
•
An objection to a reservation (R 1 ) may be made in general terms. It
will then apply to any other reservation made in similar terms to R 1 .
See Netherlands common objection to reservations (
removing jurisdiction of the
ICJ to disputes ) under the Genocide Convention. (p.
WITHDRAWAL OF RESERVATIONS
ARTICLE
22 1 . Unless the treaty otherwise provides, a
reservation may be withdrawn at any time and the consent of a
State which has accepted the reservation is not required for its
withdrawal.
2
. Unless the treaty otherwise provides, an objection to a
reservation may be withdrawn at any time.
3

3
. Unless the treaty otherwise provides, or it is otherwise agreed:
(a) The withdrawal of a reservation becomes operative in relation
to another contracting State only when notice of it has been
received by that State; (b) The withdrawal of an objection to a
reservation becomes operative only when notice of it has been
received by the State which formulated the reservation.
•
A reservation [22(1)] or an objection to the reservation
[22(2)] may be withdrawn at any time.
•
The withdrawal of reservation will become operative against
any contracting state from when it receives it notice of the
same [22(3)(a)].
•
The withdrawal of objection to reservation will become
operative when the S R receives notice of the same [22(3)(b)].
•
Withdrawal must be done in writing, usually to the depositary,
who will notify the contracting states. (p. 156)
LATE
RESERVATIONS
pp. 158 159)
•
The VCLT does not authorize or envisage ) the making of
reservations after consent to be bound has been given [see
ARTICLES 2 1 )(d) & 19
•
Nevertheless, they continue to be made till 12 months after
ratification , p. 159 ). They can t be effective unless accepted ( tacitly
or otherwise ) by the contracting parties (p. 158 ).
It is the practice of the UN Sec
Gen to allow objections within 12
months of consent ( prior to 2000 , this was 90 days ).
•
Like late reservations , the Sec Gen allows withdrawal of an
original reservation for substitution with a new or modified
reservation.
This will be circulated and if no objection has been received within
12
months, tacit acceptance shall be assumed. (p. 159
• Political Declarations - These are statements which have no ( nor are intended
to have any ) legal effect Example: a disclaimer that ratification does not signify recognition
of a party as a state. These are made often in relation to Israel. (p. 129

• ENTRY INTO FORCE
PARTY
[ARTICLE 2( g
•
means a State which has consented to be bound by
the treaty and for which the treaty is in force
Cf. Contracting party [2(1)(f)] [See note with SLIDE 123]
ENTRY INTO
FORCE
“
A treaty enters into force in such manner and
upon such date as it may provide or as the
negotiating states may agree ” 24 1
SOME WAYS IN WHICH TREATIES ENTER INTO

FORCE ( pp. 163 165)
•
On ratification ( or analogous procedure ) by both or all ) negotiating
Article 4 of Protocol No. 11 to the European Convention on Human Rights
•
On ratification ( or analogous procedure ) by a minimum number of negotiating
Article 84(1), VCLT.
This number can be high (
Chicago Convention 1944 102 ) or low Geneva Conventions 1949 2 needed
•
Conditional on the ratification ( or analogous procedure ) of certain states specified by
number, name or
category.
Nuclear Non
Proliferation Treaty 1968 ( needed ratification by 40 signatory states, including ratification by
the three depositary states
USSR, UK and the USA ), or Comprehensive Nuclear Test Ban Treaty 1996.
NO PROVISION
OR AGREEMENT
ON ENTRY INTO
FORCE
“
Failing any such provision or agreement, a treaty
enters into force as soon as consent to be bound
by the treaty has been established for all the
negotiating States. States.” [24(
DATE OF ENTRY
INTO FORCE
•
If the period is thirty days following deposit of the last
necessary instrument, the time runs from the day after
the date of deposit.
•
If the period is one month, it will run from the date of
deposit. (p. 168 169)
TIME OF ENTRY
INTO FORCE
•

•
The first moment of the day ( a well known domestic law
principle ) so identified. (pp. 170 171
RATIFICATION
AFTER TREATY
HAS ENTERED
INTO FORCE
“
When the consent of a State to be bound by a
treaty is established on a date after the treaty has
come into force, the treaty enters into force for
that State on that date , unless the treaty otherwise
provides..” [24(
EFFECT OF
WITHDRAWAL OF
INSTRUMENT OR
EXTINCTION OF
STATE ON ENTRY
INTO FORCE
•
If the instrument is withdrawn after deposit of the last
instrument needed to bring the treaty into force, it
appears to have been the practice of the UN
Secretary General not to regard the withdrawal as
affecting satisfaction of the conditions for entry into
force.
Thus, if, say, 40 ratifications are needed for entry into force,
the conditions would be satisfied even if one of the forty is
then withdrawn before entry into force. (p. 171)
PROVISIONAL
ENTRY INTO
FORCE
•
Pending its entry into force, a treaty is applied provisionally if it
so provides or if the negotiating states have in some other
manner so agreed . [25(
This obligation exists due to the adoption of the text, which shows
consent of a sovereign state.
General Agreement on Tariffs and Trade 1947 (GATT), which was applied
provisionally for decades by a Protocol of Provisional Application.
•
A state which does not so vote, or does not join such a
consensus, will be under no such obligation.
•
Even after entry into force, provisional application may continue
among those states which have by then not ratified. (p. 172)
WHY APPLY TREATIES PROVISIONALLY?

•
These measures are needed sometimes so that the states can start to act in the direction
they have chosen, while the formal requirements are fulfilled in the backdrop.
Measure
1 2003 ) adopted by the Antarctic Treaty Consultative Parties. It established a permanent
Antarctic Treaty Secretariat. However, this required the formal approval of all 27
Consultative Parties.

Consultative Parties.
As this was expected to take time, the Secretariat began acting based on Measure 2 2003 )
which
provided that Measure I will be applied provisionally. (pp. 174 175
TERMINATION
FOR A STATE ) OF
PROVISIONAL
ENTRY INTO
FORCE
“
Unless the treaty otherwise provides or the
negotiating States have other wise agreed, the
provisional application of a treaty or a part of a
treaty with respect to a State shall be terminated if
that State notifies the other States between which
the treaty is being applied provisionally of its
intention not to become a party to the treaty. treaty.”
[25(
APPLICATION
BEFORE ENTRY
INTO FORCE
“
Unless a different intention appears from the
treaty or is otherwise established, its provisions do
not bind a party in relation to any act or fact which
took place or any situation which ceased to exist
before the date of the entry into force of the
treaty with respect to that party. party.” [ARTICLE
•
Non retroactivity clause
•
A treaty can, of course, apply to a pre existing act,
fact or situation which continues after entry into
force. (p. 176)
• Observance of treaties
TREATIES ARE MADE TO BE PERFORMED
Once a treaty has entered into force for a state, it doesn
t mean that it is then in force in that
state. (p. 178
•
Wherever a treaty confers rights/obligations on persons, these can be given effect only if
these are made a
part of the domestic law of the party and provisions are made for their enforcement.
•
For example: the diplomatic immunities conferred by the Vienna Convention on Diplomatic
Relations in
1961 and the Vienna Convention on Consular Relations in 1963 , have been given effect in
India through the
Diplomatic Relations (Vienna Conventions) Act, 1972 .
•
It is up to the state party to decide how to give effect to the treaty domestically. Sometimes an
amendment
might be needed to an existing law, at others a fresh legislation would be needed. (p. 179
DUTY TO

DUTY TO
PERFORM
TREATY
•
Every treaty in force is binding upon the parties
to it and must be performed in good faith. faith.”
[ARTICLE
ARTICLE
26
EMBODIES PACTA
SUNT SERVANDA
•
It means that agreements which are legally binding must
be carried out in good faith. This is an elementary and
universally agreed principle fundamental to all legal
systems.
•
This principle, i.e., good faith, is CIL. Preambular para 3
states as much. much.(p.
ARTICLE 26
EMBODIES A
RESTRICTED
PACTA SUNT
SERVANDA
•
It applies only to a treaty which is ‘ in force .’ [A.
•
It doesn’t apply if the invalidity of a treaty is established.
[A.
•
It applies only to treaties as defined u/A. 2(1)(a). (p.
180)
FAILURE TO COMPLY WITH OBLIGATIONS

•
If a party to a treaty does not perform [it s obligations under the treaty] that will, to the
extent of the non performance, be a breach of its international obligations to the other
party or parties. A breach which is material ’ entitles another party to invoke it as a
ground for termination of the treaty or suspending its operation in whole or in part
(ARTICLE 60 ).).” (p. 180
We
ll get to this in due course.
INTERNAL LAW
DEFENSE FOR
FAILURE TO
COMPLY
“
A party may not invoke the provisions of its
internal law as justification for its failure to
perform a treaty. treaty.” [ARTICLE
•
It is, therefore, desirable that any necessary
legislation may be made before a state gives its
consent.
•

•
A state cannot plead the change in government for
its failure to comply with a treaty obligation.
• Territorial Application of Treaties

TERRITORIAL
APPLICATION
Some treaties shall apply to: (p. 200)
•
The world as such [ UN Charter ],
•
A specific territory of parties [ CoE Extradition Convention ],
•
Activities of a party or its nationals outside its territory
ATS 1959 ].
•
To the activities of ( not just the nationals of the party )
anyone ‘subject to its jurisdiction’ [ ECHR ]
TERRITORY
•
The term is not defined in the VCLT.
•
However, it embraces all the land, internal waters and
territorial sea, and the airspace above them, over which
a party has sovereignty.
•
Unless it appears otherwise from the treaty, it does not
include the continental shelf or exclusive economic
zone or fishery zones. (pp. 200 201
ARTICLE
29
“
Unless a different intention appears from the
treaty or is otherwise established, a treaty is
binding upon each party in respect of its entire
territory.
•
Sometimes it may create obligations outside the
territory of a state.
OBLIGATIONS OUTSIDE THE TERRITORY

•
A. 2 1 ) ICCPR Each State Party to the present
Covenant undertakes to respect and to ensure to
all individuals within its territory and subject to its
jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as
race, colour, sex, language, religion, political or
other opinion, national or social origin, property,
birth or other status.
•
A. 2(1) ICESCR ––“Each State Party to the present
Covenant undertakes to take steps, individually and
through international assistance and co operation,
especially economic and technical, to the maximum
of its available resources, with a view to achieving

of its available resources, with a view to achieving
progressively the full realization of the rights
recognized in the present Covenant by all
appropriate means, including particularly the
adoption of legislative measures.”
•
Extra territorial effect?
•
Not bound by the same words as ICCPR.
• Interpretation of treaties
INTERPRET. HOW?
•
There are various ways in which documents can be
interpreted, like:
•
Textual or literal interpretation; or
•
Effective or teleological approach ( giving effect to intention
or parties, or object and purpose of treaty
•
The ILC rejected the idea that in interpreting a treaty
one must give greater weight to one particular factor. factor.”
•
This was in line with the traditional way of interpreting
treaties (see McNair). (p. 231
ARTICLES
31 & 32
•
The ICJ considers that the principles embodied in
Articles 31 and 32 reflect CIL, and other international
courts and tribunals, like the WTO Appellate Body, have
followed this. (p. 231, n. 10 & 11)
•
Rarely does a treaty state how a dispute thereunder
will be settled; however, mostly this task will lie with an
international court or tribunal, a meeting of parties, or
a permanent body established thereunder. In any case,
they shall employ the provisions in these two articles.
ARTICLE 31
GENERAL RULE
OF
INTERPRETATION
“
1 . A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.
2
. The context for the purpose of the interpretation of a treaty shall comprise, in addition to
the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all the parties in
connexion with the conclusion of the treaty;
(b) Any instrument which was made by one or more parties in connexion with the
conclusion of the treaty and accepted by the other parties as an instrument related to the
treaty.
3
. There shall be taken into account, together with the

. There shall be taken into account, together with the
(a) Any subsequent agreement between the parties regarding the interpretation of the treaty
or the application of its provisions;
(b) Any subsequent practice in the application of the treaty which establishes the agreement
of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the parties.
4
. A special meaning shall be given to a term if it is established that the parties so
TITLE OF ARTICLE
31
•
•“General rule of
•
The singular noun emphasis that the article sets out
one rule, as set out in para 1.
•
At first sight paragraphs 1, 2 and 3 might appear to
create a hierarchy of legal norms, that is not so: the
three paragraphs represent a logical progression,
nothing more” (p. 234)
PARAGRAPH 1
THE BASIC RULE
“
A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in
the light of its object and purpose
•
This interpretation must be done in good faith.
Interpretation is part of the performance of the
treaty, and this must be done in good faith
pacta sunt servanda , A. 26
•
Determining the ordinary meaning (of text)
cannot be an exercise in abstract, one must
search for it only in the context of the treaty in
light of its object & purpose. (p. 235
PARA 1 (
Contd
•
•“Even if the words of the treaty are clear, if applying
them would lead to a result which would be manifestly
absurd or unreasonable, the parties must seek another
interpretation.” (p. 234)
ARTICLE 23 (1), UN CHARTER
––“The Security Council shall
consist of fifteen Members of the United Nations. The Republic
of China, France, the Union of Soviet Socialist Republics , the
United Kingdom of Great Britain and Northern Ireland, and the
United States of America shall be permanent members….”
PARAGRAPH
2 CONTEXT
“
The context for the purpose of the

The context for the purpose of the
interpretation of a treaty shall comprise, in
addition to the text , including its preamble
and annexes
•
Example: Article I of the CTBT 1996
prohibits ‘ any nuclear weapon test explosion ’.
(pp. 235 236)
Does this mean it bans the use of nuclear
weapons?
To answer this, if we look at the context of
the treaty, our doubt is quickly dispelled by
the aspirations for nuclear disarmament
preamble ] and by the title of the
PARA 2 (
Contd
Context shall comprise in addition to text
““(a) any
agreement relating to the treaty which was made
between all the parties in connexion with the
conclusion of the treaty
Agreement
•
Need not be a part of a treaty, or a treaty.
•
It must be a clear expression of intention of parties.
Example: Attached to the Final Act of the conference
which adopted the Antarctic Marine Living Resources
Conservation Convention 1980 is a formal statement
known as chairman s statement ) regarding islands within
the area of application of CCAMLR. This statement
permits the certain islands to be taken out of the normal
application of the treaty. No objection have been made
to this statement. It is an agreement used to interpret
the CCAMLAR. (pp. 236 237
PARA 2 (
Contd
Context shall comprise in addition to text
““(b) any instrument which was made by
one or more parties in connexion with the
conclusion of the treaty and accepted by
the other parties as an instrument related
to the treaty
•
The need for acceptance distinguishes
this from a unilateral interpretative
declaration.
The US
USSR STAR ’ Treaty 1991 was
accompanied by many assurances and
explanations in correspondence between
the parties. These can all be used to
interpret the treaty. (p. 238
PARA 3(

PARA 3(
a ) SUBSEQUENT AGREEMENT
“
There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding
the interpretation of the treaty or the application of its
provisions….”
•
Under Article 1.F(c) of the Refugees Convention 1951 if
there are ‘ serious reasons ’ for considering that a person is
guilty of acts contrary to the purposes and principles of the
United Nations ’ he is not entitled to refugee status.
•
On 17 December 1996, the UNGA adopted a Declaration
that terrorism is contrary to the purposes and principles
of the UN.
•
This is a subsequent agreement about the interpretation
of the Refugees Convention.
•
It does not amount to an amendment of the Convention,
nor is it legally binding.
•
Nevertheless, it carries considerable weight in the
interpretation of the Convention and shall be considered
by courts and tribunals. (p. 240)
PARA
3 b ) SUBSEQUENT PRACTICE ( pp . 241 242
“
There shall be taken into account, together with the
context: (b) any subsequent practice in the application
of the treaty which establishes the agreement of the
parties regarding its interpretation
•
However precise a text appears to be, the way in
which it is applied by the parties is usually a good
indication of what they understand it to mean.
Example: Article 27(3), UN Charter
it provides that
decisions of the SC on non procedural matters shall be
made by the ‘affirmative’ vote of nine of its members
including the concurring votes of the permanent members ’.
At first sight this would appear clearly to mean that all
five permanent members must cast an affirmative vote.
However, the practice from as early as 1946 was to
interpret ‘concurring’ as meaning just ‘not objecting’.
See also,
Temple at Preah Vihear (Thailand/Cambodia) case,
1962 ICJ.
PARA 3(
c ) RELEVANT RULES OF IL
“
There shall be taken into account, together with
the context: (c) any relevant rules of international
law applicable in the relations between the
parties

parties
•
Treaties must be interpreted in the wider
context.
See
Oil Platforms (Iran/USA) case, 2003 ICJ
there is a Treaty of Amity, Economic Relations, and
Consular Rights between the USA and Iran, 1955
which provides between the parties a ‘freedom
of commerce and navigation.’ A violation of this
can be unilaterally challenged in the ICJ.
The court used this treaty to create jurisdiction
for itself to investigate a factual situation that
involved armed attacks between the two.
•
Aust believes this was a misunderstanding of the
wider context. (p. 243)
SUPPLEMENTARY
MEANS OF
INTERPRETATION
ARTICLE 32
•
Recourse may be had to supplementary means of
interpretation, including the preparatory work of
the treaty and the circumstances of its conclusion,
in order to confirm the meaning resulting from the
application of article 31 , or to determine the
meaning when the interpretation according to
article 31 :
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or
unreasonable.
ROLE OF
TRAVAUX ( pp. 244
245
•
Only for an elucidation of the meaning of the text, not
a fresh investigation into the intention of the parties. To
confirm the meaning given by application of 31
•
It can be used to determine meaning , when reliance on
the primary means produces an interpretation which
(a) leaves the meaning
ambiguous or obscure ’ or
(b) leads to a result which is
manifestly absurd or
unreasonable.
This flows from
31 1 ).
WHAT IS A
TRAVAUX?
•
•“generally understood to include written material, such as
(p.
•

•
successive drafts of the treaty,
•
conference records,
•
explanatory statements by an expert consultant at a codification
conference,
•
uncontested interpretative statements by the chairman of a
drafting committee, and
•
ILC Commentaries.
•
It must be approached with care ( questions of authenticity
and completeness ), more so today as treaty making
becomes more informal with back room negotiations
OTHER POSSIBLE
SUPPLEMENTARY
RULES OF
INTERPRETATION
•
Recourse may be had to supplementary means of
interpretation, including the preparatory work of the
treaty …. ….” Therefore, there can be other
supplementary means.
•
Aust notes that Oppenheim provides an entire list. (see
p. 248, n. 79).
Example: Interpretation
a contrario The ICCPR 1966 has no
denunciation clause, but its (first) Optional Protocol (adopted
at the same time) does.
One can therefore argue strongly that it was not intended that
a party would have the right to withdraw from the Covenant.
IMPLIED TERMS
•
Although it is not for an international tribunal to revise a treaty by reading into it provisions
which it does not contain by necessary implication, but sometimes it is necessary to imply a
term.
Example: At the end of the Falklands conflict in 1982, there was
not enough accommodation in the territory
for the 10,000 Argentine POWs captured on land in the final stage, the tents intended for
them having been
lost at sea when the ship carrying them was sunk by enemy action. Following consultations
by the UK with the
ICRC, it was decided that the POWs could be kept on merchant ships and warships in
Falklands waters until
they could be repatriated.
Article 22 of the Third Geneva Convention clearly prohibits holding on ships POWs who are
captured on
land. Given that the primary object and purpose of that Convention is the welfare of POWs, it
was deemed
proper to hold POWs on ships when a party, for reasons beyond its control, was unable to
comply with
words of Article 22. (pp. 249 250)

INTERPRETATION OF
TREATIES
AUTHENTICATED IN
TWO OR MORE
LANGUAGES
ARTICLE 33
“
1 . When a treaty has been authenticated in two or more languages, the
text is equally authoritative in each language, unless the treaty provides
or the parties agree that, in case of divergence, a particular text shall
prevail.
2
. A version of the treaty in a language other than one of those in which
the text was authenticated shall be considered an authentic text only if
the treaty so provides or the parties so agree.
3
. The terms of the treaty are presumed to have the same meaning in
each authentic text.
4
. Except where a particular text prevails in accordance with paragraph
1 , when a comparison of the authentic texts discloses a difference of
meaning which the application of articles 31 and 32 does not remove,
the meaning which best reconciles the texts, having regard to the object
and purpose of the treaty, shall be adopted.
ARTICLE 33
(
•
If treaty is silent on matter of authenticity, then both
versions are deemed to be equally authentic. [para 1]
•
See Kasikili/Sedudu Islands (Botswana/Namibia) case.
[para 3]
Withdrawl from treaties - https://www.everycrsreport.com/reports/R44761.html

TEST III
01 October 2020 07:20

Prof J
01 October 2020 07:19
• Readings for Jaggi's part of the paper: Falk(done), Anand(done), Garner(done), Janis(done),
Parlett(done) and Trindade (done)
• Reading One - Falk

• Reading Name - On the Quasi-Legislative Competence of the General Assembly by Richard
A. Falk
• This article would be 38 1 (b) – as per the writing of eminent publishers haha
• Abstract - Through this article, Professor Richard Falk argues that the general assembly
should be given some form of recognition for its the legislative function it performs in the
international arena implicitly; Falk, talks of a quasi judicial power in the hands of the general
assembly, takes a middle ground.
• Falk begins with criticising the narrow approach of treating ICJ statute as the sole originator
of i law (under Art 38; sources of international law)
1. He states how it has been traditional to associate the creation of international law with
"the sources of international law" contained in Article 38 of the Statute of the
International Court of Justice.
2. Such an approach distorts inquiry by conceiving of law-creation exclusively from the
perspective of the rules applicable in this one centralized, judicial institution,' an
institution that expresses the positivistic assumption that international legal obligations
must always be shown to rest upon some tangible evidence of consent on the part of the
state that is bound
• He states that with advancing times, inclusion of Afro-Asian states and growing global
consciousness - there needs to more sociologically grounded re-interpretation of the basis of
obligation in international law (i.e. I law is not just followed because it is written so in ICJ
statute; move away from this positivistic justification of law)
1. One way to attempt this re-interpretation is to complicate the relationship between state
sovereignty and the growth of international law by examining the argument that the
General Assembly is endowed with, and actually exercises, a limited legislative
competence - CENTRAL ARGUMENT OF THE PAPER
• He states that a middle position of according quasi-legislative force to resolutions of the

General Assembly will be nice way to solve the formally difficult affirmation of true
legislative status and a formalistic denial of law- creating role and impact
• In 1945 at San Francisco the Philippines Delegation made the following proposal to endow
the General Assembly with legislative authority:
1. The General Assembly should be vested with the legislative authority to enact rules of
international law which should become effective and binding upon the members of the
Organization after such rules have been approved by a majority vote of the Security
Council
2. It was however rejected badly
3. Charter intent is decisive and strictly construed, it becomes impossible to attribute
binding legal force to resolutions of the General Assembly or to consider that the
Assembly is in any sense an active, potential, or partial legislative organ
• Increasingly in other legal contexts, the characterization of a norm as formally binding is not
very significantly connected with its functional operation as law. i.e. non-binding sources
having the power to create norms. Example:-
1. In the Japanese case of Shimoda and others v. Japan, the Tokyo District Court was
trying to assess the extent to which the atomic bombings of Hiroshima and Nagasaki

trying to assess the extent to which the atomic bombings of Hiroshima and Nagasaki
violated international law. In reasoning to a conclusion, the court made virtually
interchangeable use of rules contained in fully binding international treaties (Hague
Rules of Land Warfare) and those contained in draft rules (Draft Rules of Air Warfare).
In the Shimoda setting, then, draft rules had the same (or at least an indistinguishable)
role as did treaty rules in supporting the result
2. The moratorium(temporary ban) on nuclear testing during cold was entered into by the
United States and the Soviet Union - was not a hard treaty but a soft, diplomatic law.
Although it was made clear that neither country had renounced its right to test, the
resumption of Soviet testing in 1961 was treated in many respects as similar to a
violation of a legal duty.
3. In international environment law agreements at Rio, there were the binding treaties like
UNFCCC and CBT but there were also non – binding agreements like the Rio
declaration which has in fact been more successful in determining international norms
around the environment than UNFCCC (which failed when Kyoto failed).
4. Another type of resolution for norm creation are for ex- resolution 1803 relating to
permanent sovereignty over natural resources. In this case both the superpowers were
not in favour however, entire large nation of Afro-Asian countries pushed for it
a. For baxi paper permanent sovereignty among natural resources is noted by him
21st century in one of things third world was able to do.
b. Resolution without the support of superpowers does not provide for a very clear
mechanism of settlement when expropriation happens has, been able to create
norm in that direction over the years on the flip side he talks about when he was
looking back then was a strong resolution it could be possibly question it today.
Both the super power came together and agreed this is something on which they
can have consensus on and it Immediately led to the creation of outer space which
had to necessarily be kept demilitarize.
• Consent to consensus
1. Distinguished writers have started to emphasize the will of the international community
as the fundamental law-creating energy.
2. Such an emphasis contrasts with the more traditionalist assumption that all obligations
in international law can be traced directly (via explicit agreement) or indirectly (via
state practice) to the consent of the sovereign state or to some system of natural rights
and duties that is valid in all places for all time - consent to consensus?
a. discernible a trend from consent to consensus as the basis of international legal

obligations
b. International Arena is fast changing (giving the backdrop for the above trend) -
especially the growing perception of social and economic interdependence, the
increased numbers of states participating in international affairs, the growth of
international institutions as focal points for the implementation of the will of the
international community and the diminishing willingness to insulate
internationally important activity from international legal control by deference to
the dogma of domestic jurisdiction.
c. Hence, If international society is to function effectively, it requires a limited
legislative authority, at minimum, to translate an overriding consensus among
states into rules of order and norms of obligation despite the opposition of one or
more sovereign states (i.e. Supplanting consent of few with the generally required
consensus)
d. This can be seen in how certain nations like North Korea or China might try to
influence the global village unless a broader consensus is used to dictate rules and
norms

norms
3. Examples of reliance on consensus

a. United States Supreme Court in the Sabbatino case : xyz traditional rules of
international law imposing a duty upon an expropriating government to pay an
alien investor "prompt, adequate, and effective compensation" were no longer
supported by a consensus of sovereign states and, as a result, the validity of such
rules was in sufficient doubt as to make them inapplicable to the dispute."
b. Rosalyn Higgins states how resolutions of the Assembly are not per se binding:
though those rules of general international law which they may embody are
binding on member states, with or without the help of the resolutions
i. But the body of resolutions as a whole, taken as indications of a general
customary law, undoubtedly provide a rich source of evidence.
ii. If declaratory language is used in the resolution, then the problem of
acknowledging the formal absence of legislative competence is more or less
solved and at the same time the legislative character of the claim is
maintained.
4. Norm-declaring resolutions are legal data that will be taken into account in legal
argument among and within states.
5. In the search for bases of justification or objection it is clear that the resolutions of the
Assembly play a crucial role-one independent of whether their status is to generate
binding legal rules or to embody mere recommendations
6. The degree of authoritativeness that a particular resolution will acquire depends upon a
number of contextual factors, including the expectations governing the extent of
permissible behaviour, the extent and quality of the consensus, and the degree to which
effective power is mobilized to implement the claims posited in a resolution
• Before giving quasi-legislative force, it is important that the limits of such power be
discussed - two ways
1. Essential to classify as accurately as possible the nature of the legislative claim; that is,
to identify the claim that is being made and what must be done by whom to comply
a. the language of the resolution must be carefully analysed to see whether it
formulates specific duties to be discharged by specific actors
b. also necessary to describe the rights and duties of states in the absence of the
resolution
c. necessary to obtain some insight into the varying objectives pursued by those who
supported or opposed the resolution to get a better image of its anticipated
2. Essential to clarify the conditions surrounding the vote on a resolution as they bear
upon the accuracy of attributing legislative status to it.
a. If the resolution enters a political process that looks toward implementation, then
the legislative nature of the claim is more clear-cut, that is, there seems to be some
explicit connection between the status of the claim as legislative and the prospects
for effective implementation: the better the prospects, the more appropriate the
label "legislative"
b. Exception
i. Contributions of the General Assembly in the war/peace area is to help
establish a climate of opinion that is favourable to the growth of world order.
ii. This contribution cannot be assessed by any measurable impact or by any
evidence of specific intent.
iii. However, it does not seem extravagant to contend that Assembly resolutions
on the subject of nuclear testing and non-proliferation dramatized a global

on the subject of nuclear testing and non-proliferation dramatized a global
concern that may, at least, have helped keep the nuclear Powers at Geneva,
despite a widespread sense of discouragement about the prospects for
agreement. Perhaps, one could describe these efforts as creating a "weak"
legislative norm that operates to influence marginal decisions about nuclear
testing and proliferation
• Recap
1. The limits upon quasi-legislative competence of the Assembly are less a reflection of
the absence of the formal competence to legislate than they are a consequence of certain
political constraints arising from the general requirement of mobilizing effective
community power in support of legislative claims.
2. In international society this mobilization can normally only take place in the event of
converging interests on the part of powerful states, although the convergence may
express varying degrees of agreement as to carrying forth the policy designed to
influence behaviour.
3. It is also relevant-and complicates any interpretation of the locus of effective action on
the part of the Assembly that relies too heavily on power as the chief explanatory
factor-to take note of the role of African and Asian states in providing the formal
majority and often the political impetus for the assertion of legislative claims by the
Assembly
• The assessment of the possibilities for quasi-legislative action

1. International atmosphere created that exerts pressure and influence on the more
powerful, esp in things like war and morality
2. And probably to reduce the hegemony of power that might rise with nations with
America and China on one hand and new third world entrants on the other
• See this in relations to Garner, Anand and even the whole section on NGO/TNC (where they
help influence interstate politics)
• Reading Two - Garner

• Reading Name - Unilateral Oral Declarations as a Source of International Law by James
Garner, “The Binding Force of Unilateral Oral Declarations” 27(3) American Journal of
International Law 493 (1933)
• Btw, ten guidelines followed regarding unilateral oral declarations now - ILC's "Guiding
Principles applicable to unilateral declarations of States capable of creating legal
obligations."
• The key question this reading is asking is whether an oral promise made by a foreign affairs
minister to another foreign affairs minister of diff country (whether he has under
constitutional ability or not) - has the effect of an agreement written and whether it binds the
minister who made it.
• PCIJ in Eastern Greenland Case said it binds
• Author cites various precedents and current practices where similar oral agreements have
been made - check the examples in the reading
• But some I law authors condemn this approach of putting oral agreements in tandem with
written treaties - as it is difficult to prove the fact of such agreements and that too after years
the person making them has died; also leads to disputes etcetera
• But majority of modern i law authors recognize such agreements but still maintain that they
should be reduced into writing whenever possible

• Even some drafts provide this capability
1. Fiore (article 788) stated that oral agreements whose stipulations are capable of being
proved without difficulty are good to go
2. Bluntschli's draft (Art 422) stated that while actual usage requires treaties are required
to be in written, in war times etcetera, oral agreements are often entered
3. But at the same times, Article 18 of covenant of league of nations requires all treaties
and international engagements to be registered with the secretariat of the LoN and
published as soon as possible before they become binding - hence under it oral
agreements might have a trouble establishing themselves
• In PCIJ's Greenland case - the issue was not whether an oral treaty is binding but whether a
unilateral oral declaration was binding on the minsiter who made it?
1. Norway minister said that Norway will have no issues with any plan of Danish
government over Eastern Greenland
2. The minutes of the meeting were prepared by that minsiter and the Norwegian
government admitted to the facts of such declaration but the minutes (or the oral
agreement) was not registered with the LoN secretariat
3. Later, Danish government said that such declaration has the nature of a binding
agreement and Norway was bound by it. Norway on the other hand said that this was
just a kind, benevolent diplomatic assurance that Norway would be kind and
understanding in its attitude in negotiations with Danish over their sovereignity over
Greenland; not a binding promise of a nature of treaty obligation
4. Norway further argued that the foreign minister did not have the constitutional power to
bind his country in such way
5. The majority in the Greenland case upheld Norway's argument. In dissent, Judge
Anzilotti said that the competence of the foreign minister was never brought in
properly. Even if its is assumed that he was incompetent, the decision of the majority is
still correct (i.e. reaching the same judgment but on different grounds). In his judgment,
he said the following:-
a. Though the agreement was verbal, it was valid and binding on Norway because
both the countries had agreed to it; no proof required
b. No i law rule stating that such agreements have to be in writing
c. Further as to constitutional capacity, Anzilotti held that it is general state practice
to invest in foreign minsiter as the direct agent of the head of the nation; with
authority to make statements in foreign diplomatic representations
d. Further, it was minster's fault that he did not first take the consent of his state and
even if he overstepped his constitutional capabilities, it was violations of their
state law and Denmark should not have to suffer for this; held that Norway should
be bound
• Court in Congo case said that with the increasing frequency in modern international relations,
other person representing states in specific field if authorized by state can bind such states by
their statements in respect of matters falling in respect of their purview.
• Similarly in the Hungarian Optant case - the question was regarding the juridical status of
the minutes of a conversation which took place between representatives of Hungary and
Rumania
1. Rumania said that the conversation was binding even though it was unsigned and was
not registered with LoN
2. Hungary obviously said that nah, no binding etcetera; Hungary's view was upheld by
the Rumanian-Hungarian mixed arbitration tribunal
• Similar dispute between China and Japan : china wanted to lay down a railway line
1. Japan said that by a secret protocol, china had agreed not to construct railway line
parallel to south Manchurian railway or other branch line that was detrimental to

parallel to south Manchurian railway or other branch line that was detrimental to
Japan's interest
2. China said, no man, no such protocol. It was a merely oral declaration embodying a
tentative understanding recorded in minutes of a conference and not in a treaty. Further
the treaty that was concluded relating to this matter from that conference, had no such
declaration on the part of China
3. Yet, the Lytton Commission of Inquiry in its report to LoN upheld Japan's view point;
and said that China's statements were binding agreements on it.
• Hence after having given two-three vantage points; the authors gives a conclusion as below:-
1. Oral agreement between stated will be binding upon them if it were recorded in writing
and will be applied by international tribunals whenever the facts of such agreement is
proven
2. If terms of agreement is recorded merely in minutes of a meeting or conference, the
authenticity and correctness of which is accepted by both the parties, no further proof of
agreement is needed.
3. If there is not even such admitted minutes, a witness might be used to establish the fact
of the agreement.
• Connect this reading of oral agreements with what we did in acts/claims as state practise in
Akherust
• Reading Three - Anand

• Reading Name - Third World and the Development of International Law. R. P Anand,
“Attitude of the Asian-African States towards Certain Problems of International Law” 15(1)
International and Comparative Law Quarterly 55 (1966)
• Start from conclusion

1. It remains that Asian-African countries do not arbitrarily reject the present system of
international law.
2. They accept a large part of it. In fact they accept everything that does not smell of "
colonialism and imperialism."
3. They are supporters of a strong United Nations because it acts as a shield for them
against the might of the big Powers, and helps them in the promotion of their interests
(does this connect to falk, giving assembly a legislative character to help save new
entrants?)
4. Taking advantage of their numerical superiority in the United Nations, they are trying to
wipe off the old colonial rights, and to modify the present law according to their
interests. Examples:-
a. The two conferences on the law of the sea, the debates in the Sixth Committee,
International Law Commission, and other organs of the United Nations, the recent
declaration on the " granting of independence to colonial countries and peoples "
(of 1960), and the General Assembly resolutions concerning " Permanent
sovereignty over natural wealth and resources " adopted in 1952, and reiterated in
1962 by another and stronger resolution - had their key roles
b. Even if these are not binding resolutions and merely recommendations; they have
key role in informing I law
5. Need for a holistic, co-operative effort
a. Third W countries must assure the Western countries of their good faith and best
intentions.
b. Thus, during the debates in the General Assembly on the 1962 resolution relating
to natural wealth and resources, they tried to allay all fears and doubts in the
minds of the capital-exporting States about their adherence to international law
and their future behaviour.
c. While they were unwilling to limit their freedom with respect to property acquired
by foreigners during the colonial period, that did not preclude their willingness to
guarantee new investments and new agreements accepted by them on an equal

guarantee new investments and new agreements accepted by them on an equal
basis
d. Hence, new age diplomacy required that uses mutual self-interests as a motivating
factor rather than coercion like earlier times (or use of force)
e. Interests in the global order tied - Connect with the co-operation that Akherust
suggested
• Lets begin with the reading

• Most of the AA states are weak but they cannot be ignored anymore because:-
1. Though they are underdeveloped, their importance in the international
community/world order is growing. They have objects of strong competition (as the big
states want to woo them) hence they have gained an unusual influence. See for
example, the fight over African markets, china's incessant swoop over there and USA's
issue with that - Sino-African relations
2. IOs like UN provide give them an international forum to express their dissatisfaction,
views etc.. They enjoy formal equality with the big powers and numerical superiority in
such international forums
3. AA states feel like their views, experiences have not been sufficiently expressed in the
traditional IL (again connected to eurocentrism). They want an accepted body of laws
that is acceptable, up to date and in harmony with the views, cultures, experiences,
aspirations of most countries (more inclusive).
• Diversity among Asian-African countries (connect with Baxi's third worldism where he states
the irritation of third world being blindly categorised together, despite of their differences
etcetera)
1. Obvious differences and diversity exists between AA countries (geography, culture ,
politics and other things), they have different interests, views, aspirations etc hence
diversity must not be overlooked, cannot generalize
2. Yet Anand says that it is possible to discern common tendencies, attitudes etc especially
if the countries have a similar background or history (colonialism) and says that in order
to appreciate their attitude and views one must look at their histories, development,
legal systems
• Development of IL
1. The actual body of international law, as it stands today, is not only the product of the
conscious activity of the European mind, but has also drawn its vital essence from a
common source of European beliefs, and in both of these aspects it is mainly of
Western Europe
2. European powers arrived in Asia and entered into treaties, diplomatic relations with
Asian countries (didn’t do that in America and Africa as there was no established
nations etc.)
3. All this happened with some reciprocal acknowledgement of sovereignty. In this
context IL refers to the law of reciprocity between East and West
4. In 19th century, increasing power + growth of positivism made them question the legal
personality of Asian states, considered them to be inadequate for full membership in the
family, considered them to uncivilized and barbarous.
5. Asian, African states, America and Australia were characterized as terra nullius
(territory of no-one, un-habited, unowned land - a nice tool in hands of colonizers to
'claim' land as their own, no matter who lived there originally)
6. Back then IL was only applicable to civilized Christian European states ( a very
homogenous group, common backgrounds, culture, civilization based on tenets of
Christianity)
7. Asian countries were not in a position to question the European writers hence they lost
their international personality were reduced to mere colonies or objects of IL, did not
have any active or creative role to play.
8. Lot of power struggle : even small and weak European countries has no role to play in
the development of IL
9. The international society, having outgrown the Christian nations, the common factor or

9. The international society, having outgrown the Christian nations, the common factor or
qualification for participation in this club was sought in civilization (largely symbolized
by the power a nation possessed). Japan was the first country to join this elite club of
old men
10. Illegitimate power and violence used against third world. When the treaty of 1779
between Maratha and Portuguese, was used by Portuguese against India in 1960 by
saying that we signed the treaty with Marathas and you are the successor state.
a. There has been movement in international body starting with the congress of
Vienna 1815, where the European nations got together and sliced off the world
into the chunks that they would govern. We were once a part and then use of
power and of their more advanced position, we were pushed out and now this
small number of European nations took upon themselves and assumed upon
themselves to admit new member. Originally, these nations were distinguished as
uncivilized and barbarous. The civilized countries on the other hand took upon
themselves to decide who becomes the part of international community .
b. By taking our civil-ness, they are taking our human-ness in a way , our territories
were taken away as we were barbaric so Europeans can take it away
c. India contended against the friction of ICJ when the Portuguese took on there in
right of passage case. India's argument was if you are going to use rules and laws
of the time that we did not have equal position in international stage, and are using
Maratha treaty, our sovereignty is getting stripped away; violative of international
law. We also wish to do away with unequal treaties and we want to work in our
interest; similar to the principle of western European nation i.e. following treaties
when it serves their interest.
d. The post-colonial rights of self determination as a political concept along with
complete sovereignty over natural resources was something that we were able to
actualize. On becoming independent we agreed to certain treaties that already
existed. So in 1947, the government of India agreed to 627 treaties and agreement
which were made binding as a successor independent India; we took the burden of
those treaties with suitable modifications.
11. Asian states were a part of Hague Peace conferences and League of nations but it was
merely a token participation, their voice was not heard.
12. It was only after the Second World War, in fact only since 1955, that under a strong
current of the principle of self-determination, aided by the unusual conditions of " cold
war," most of these countries acquired independence and became full-fledged members
of the international society. Their numerical superiority has given them a unique
influence and position in the international arena.
• Criteria of civilized nations has been replaced with peace loving nation, hence UN has
practically become open to every peace loving national that is willing ( and able) to carry out
charter obligation.
• Law and Society

1. Social and political process (factors) have a role to play in the content of every legal
system
2. Possession of extraordinary power and authority leads to abuse and selfish exploitation
ex- laws on state responsibility were made without the consultation of smaller states
and are usually against them they are based entirely on unequal relations between the
big powers and smaller states
3. Treaties have been used to sanctify subjugation and exploitation of the smaller and
weaker States. They have, moreover, been used to impose protection and exploit
economic privileges. Many newly independent States had to sign unequal treaties or to
adhere to military alliances under strong pressures. Sometimes, independence is granted
only after such a treaty is signed, granting the colonial Power economic and military
concessions. The newly independent States have little choice in such a situation.
4. The above phenomenon is limited when there is a rivalry between two western
countries (relate to Eurocentrism- "much of Western law, including international law,

countries (relate to Eurocentrism- "much of Western law, including international law,
has developed in response to the requirements of the Western business civilization," and
several of its principles are, therefore, biased in their favor).
• Expansion of International Society and its Effects

1. Expansion beyond the European countries, more inclusive
2. Need to change : the law needs to evolve to sufficiently represent the views, aspirations
of smaller countries, homogenous laws formed by western countries , difference
between big powers and small countries (economic, social, industrial, developmental
etc) hence traditional IL is not sufficient (inclusive enough)
3. States have become more interdependent, IL needs to mold to this new concept
4. Change in social structure must be accompanied with a change in law
5. Law should change with the change in conditions, inclusion of AA countries is a huge
change in conditions, hence law should change to suit their circumstances
• Protest of AA states against certain parts of IL

1. AA countries had no choice when it came it treaties signed in the colonial period
2. Want to change status quo, want equal footing
3. They not only demand full freedom to restructure their societies, but unconditional help
for their economic and industrial development
4. Fourfold development
a. To annul the former law of domination as expressed in the colonial system and the
" unequal " treaties
b. In their view the European domination and occupation of their territories was
effected in contravention of international law, and the duration of a few centuries
could not legalize the illegality of the European rule. In other words, they contend
that the rule of prescription is not applicable in the case of colonialism
c. Rebel against some of the economic and political rights acquired by their former
colonial masters during the period of their subservience which they have felt and
still feel are unreasonable and, although accepted by the present international legal
order, inequitable (how can European countries use principles of morality as a
shield after plundering so many territories).
d. They insisted that unjustified and inequitable political conditions should be
eliminated through negotiations and agreements and law should be modified
according to changed circumstances
• Such protest not confined to AA countries

1. Most of the underdeveloped States of Asia, Africa, Latin America and even those of
Europe, have joined in demanding that international law should be responsive to the
needs of the factual situations to which it is being applied
2. Trying to change treaties, make things equitable
3. There have been instances when western countries have disregarded treaties when it
suited them while they would like to uphold treaties with weaker countries that are in
their favor
4. Talk about change in status quo, improve standard of living, colonial past and how you
want to get over the shackles of our oppression.
• But son, IL is not completely rejected by these groups

1. States never denied the existence or authority of IL, rather they are protesting against
certain aspects of international law, demand the modification of some old colonial
rights or economically pressing treaties, and desire the development of international law
so as to make it a law of protection and welfare, do not indicate any wholesale rejection
of the present system of international law
2. Traditional IL is an obstacle for their growth and development, believe that the views of
newcomers should not be disregarded
3. Ex- on becoming independent, the Asian-African countries generally accept the old
treaties concluded on their behalf by the former colonial Powers until they are modified,

treaties concluded on their behalf by the former colonial Powers until they are modified,
renegotiated or replaced with the consent of the other parties. After achieving its
independence in 1947, India, for instance, considered itself bound by all the treaties
concluded by the British Indian Government, except those which became inapplicable
because of the partition of the subcontinent.
• This reading is pretty much connected to out entire I law course, that is being taught in a third
world haha - can be read with almost all readings in course
• These Third Worlds have certain aspirations that they seek to fulfil through popular forums
1. Baxi listed out these aspirations in last page of his reading
2. Falk also pointed out how General Assembly is being used to serve a legislative
function - and logically thinking, third world are majorities in these forums
• Reading Four - Janis

• Reading Name : Individual in Modern International Law. M.W Janis, “Individuals as
Subjects of International Law” 17(1) Cornell International Law Journal 61 (1984)
• Positivism – usual theory for comprehending I Law. Positivist approach to I Law grounded in
differentiating between municipal and international rules based on subject, i.e., I Law = for
states, municipal law = for individuals who are subjects of a single state. But this Article
rejects positivist approach to I Law and calls for definition of discipline that recognizes
individuals as subjects of I Law.
• Three parts to Article
1. Reviews development of positivist theory of I Law
2. Tests subject-based approach against some realities of international practices to show I
Law has long involved individual rights/obligations
3. Suggests that a different, older theoretical foundation for I Law may be a better way to
encompass individuals as subjects of I law.
• Positivism and the Development of the Subject-based Definition of International Law

1. Before positivism, no insistence that rules of law of nations applied only to states.
2. William Blackstone – individuals and states were both proper subjects of the law of
nations. He made no distinction between what is now called public/private I Law
(called “rules of law of nations”). Blackstone distinguished I Law from other law not by
subjects but by sources. He saw I Law as universal, emanating from natural justice or
practices of many states. Municipal law came from a single state.
3. Jeremy Bentham – introduced the term ‘international law’. He defined it as a law that
related to the “mutual transactions between sovereigns as such”. Wrt transactions
between individuals from different states, he said they are regulated by internal law,
decided upon by internal tribunals. Therefore he differentiated on the basis of subjects
of law, and I Law had only states as its subjects. Bentham wrongly assumed that I Law
so defined was equal to the traditional law of nations.
4. Two 19th century positivists promoted the notion that the individual was not a proper
subject of I Law.
a. Joseph Story- crafted private I Law in parallel to Bentham’s public I Law. Public
IL = affects states, private IL = concerning international matters b/w individuals.
b. John Austin- because public IL regulates matters between sovereign states, which
as sovereigns could not be regulated by any outside authority, I Law is just a form
of ‘positive morality’ and not really law at all.
• Legal positivism took 18th century law of nations and converted to public and private I Law.
They scorned both parts also. Public IL was I but not L, private IL was L but not I. Even
HLA Hart- assumed I Law addressed states. He accepted uncritically Bentham’s subject-
based approach to the field.
• Positivist definition of I Law has had an enormous influence on modern perceptions wrt
individuals and I Law. But this subject-based definition is oftentimes wrong in practice.

• The Subject-Based Definition of International Law and Some Realities of International
Practice : Positivism ke time par bhi, individuals being subjects
1. Prominent example of failure of positivism to describe reality- Respublica v. De
Longchamps- American municipal court indicted person for assaulting diplomat from
France to the USA. He (an individual) was found guilty of violating a law of nations.
Same even during high tide of positivism.
2. The Paquete Habana – US Navy seized two Cuban fishing smacks during early days of
Spanish-American War. The masters of the boats argued that peaceful fishing vessels
were exempt from seizure. SCOTUS held that I Law is part of municipal law,
individuals had a right to rely on that rule against the US.
3. Trials of Nazi war criminals – since excesses were of a seemingly civilized state, those
formulating/applying I Law discarded any pretense that international rules applied only
to state behavior.
4. The Charter of the International Military Tribunal at Nuremberg explicitly made
individuals subject to international rules relating to crimes against peace, war crimes,
and crimes against humanity. Nuremberg trials re-established that rules of I Law should
and do apply to individuals.
5. Nuremberg trials had influence on other elements of modern I Law. Example- impact
on formulation and implementation of the 1950 European Convention for the Protection
of Human Rights and Fundamental Freedoms- party states should secure to everyone
within their jurisdiction certain rights and freedoms incl. right to life, liberty and
security of person, freedom from slavery, etc.
6. It formulates these rights and creates institutions to enforce them- the European
Commission of Human Rights and the European Court of Human Rights; the
Commission – 20 members, one from each contracting state. Any member may refer to
the Commission a breach by another contracting state. People, NGOs and groups of
individuals can petition the Commission wrt violations of the Convention. This right is
limited to complaints against states that have recognized the competence of the
Commission to receive such petitions, but 16/20 of the contracting parties have. Then
Commission tries to reach an amicable settlement. If no, it submits a report to the
Council of Europe.
7. After the report, a case may be referred to European Court of Human Rights. 21 judges,
for each member of Council of Europe. 18/20 signatories recognize compulsory
jurisdiction of the court. Individual can’t refer case to court, but the Commission can,
and frequently will.
8. Both the Court and Commission receive a large number of applications from
individuals. This makes the European human rights system a vital aspect of
international law.
9. Plus, the European human rights system operates effectively. The Court has found
countries as violating some human rights and in each of these cases, its judgment was
respected.
10. The European human rights system has also served as a model for other regions.
Example, American Convention on Human Rights.
11. European Economic Community (EEC) is another example of rules/process applicable
to individuals under I Law. EEC – ten nations, adhering to 1957 Treaty of Rome. One
component = European Court of Justice. It hears cases brought by states, international
institutions, the Council and the Commission, and also by individuals.
12. The European Court of Justice explicitly recognized the applicability of EEC law to
individuals in Van Gend en Loos case.
13. Vast bulk of European Court of Justice cases brought by individuals, not states.
14. In the face of this practice, it is unrealistic to theorize that individuals are not subjects of
I Law. Final example- decision of US Court of Appeals of 2nd Circuit in Filartiga v.
Penairala. Both sides to dispute were individuals, court used I Law to decide
jurisdiction.
a. Plaintiffs- Paraguayan citizens, father and sister of another Paraguayan whom they
said was tortured and killed in Paraguay by defendant PenaIrala, also Paraguayan.
b. Plaintiffs based their claim on a provision from 1789 Judiciary Act which gave

b. Plaintiffs based their claim on a provision from 1789 Judiciary Act which gave
jurisdiction to the court for torts committed in violation of the law of nations. The
court looked at customary practice, treaty provisions, municipal law, expert
opinion, international resolutions. Finally held that torture violated the law of
nations.
15. All these examples establish that a large part of I Law establishes individual rights and
obligations and provides for procedures to enforce these rights and obligations. Reality
of practice contradicts the positivist insistence that I Law applies only to relations
among states.
• Plus, restricting I Law to states fails a second test of positivism- that of prescriptive worth.
Imagine leaving the Nazi victims without any legal recourse except German law.
• A Speculation: A Source-Based Concept of International Law

1. Revert to Blackstone’s understanding of I Law. What are the objections to this?
2. If I Law is so characterized, it is not properly ‘international’. So what, go back to
calling it ‘law of nations’. Otherwise, continue using the term ‘international law’ but
understand ‘nation’ to include national state as well as individuals who are the nationals
of the state [what about stateless folks].
3. Such reversion may result in mixing public and private IL. Positivists may reject this,
but it may be a blessing.
4. If positivist exclusion of individuals from I Law was wrong, then this public/private
divide is also meaningless. There exists case law that makes no clear distinction
between private/public IL. Hilton v. Guyot – whether French judgment valid in US,
SCOTUS looked at American practice + practice of many other countries. It’s weird to
classify Hilton as private and not public. In both Hilton and Paquete Habana, the
sources of the rules were multinational. The role of I Law in Hilton is closer to
Blackstone’s conception of law of nations than Bentham/Story.
• Author’s argument not that the theory of separating public/private IL is out of step with
practice- it isn’t. He suggests that theory should begin encouraging practice, and move closer
to reintegrating public/private IL.
• Argument is partly developmental. Given international problem and preference for accord
and harmony amongst states, it is sensible to attempt to find rules that are acceptable outside
the narrow boundaries of a municipality. This is true for several reasons:
1. Will be fair to foreigners
2. Encourage foreign states to reciprocate.
3. Benefit international transactions generally to have foreseeable rules applicable
commonly in many fora.
4. Compelling argument in favour of source-based approach- reflective of what courts
actually do when they search for public and often-times private rules of I Law.
5. All the cases discussed above did it. Story’s judgment in United States v. Smith is also a
compelling example. Story held that the Congress did not need to have a proper
definition of privacy because one already existed in the law of nations. More recent
example – Victory Transport, Inc. v. Comisaria General. If the courts turn to
multinational sources so often why not recognize it as a nature of rule search not the
nature of subjects that define discipline?
• The horrors of positivistic understanding is also discussed in Trindade, much better imo
• Conclusion
1. Positivism's subject-based approach to international law is neither realistically
descriptive nor beneficially prescriptive.
2. While it is true that international law frequently concerns states inter se, oftentimes
international law directly involves individuals.
3. Better to focus our attention on the universal and multi-state sources of both public and
private international law. Such a focus better distinguishes international from municipal
law. It usefully encourages courts and other law finders and appliers to look outside
national sources for rules of decision in international cases.

national sources for rules of decision in international cases.
• Reading Five - Kate

• Reading Name - Rationale for the increasing acceptance of individual as subject in
international law. Kate Parlett, “The Individual and Structural Change in the International
Legal System” 1(3) Cambridge Journal of International and Comparative Law 60
• Saying international law of 19th century is very different from that of 20th century
1. At that time, international law was generally conceived as a body of rules and forms of
conduct applicable to states in their relations with each other
2. During the 20th century, a more multifaceted and cosmopolitan view of legal relations
in international law emerged. There is now little controversy surrounding the notion
that international law is not exclusively concerned with inter-state relations (but also to
other I law actors)
• Debate concerning individuals in the International Arena (which has become largely
individual centric) - 3 arguments
1. What is the motivating force for this structural change in international law
2. Should an individual centric approach be welcomed or some original form of 19th
century I law be retained?
3. Is doctrine of subjects(a categorization of states versus all others) still useful?
a. 19th century I law was concerned with inter-state relations hence, states were
primary subjects and were more or less similar to each other in quality
b. But in 20th c, other entities (esp. individuals) have also become subjects and vis-
à-vis states etc., they have different qualities obviously
• Historical development of the position of the individual in the international legal System
1. But where does history start?

a. Many refer to Grotius as the father of international law and begin their assessment
with his work.
b. Author instead, begin in the 19th century, when there was emerging consensus on
a conception of international law or 'the law of nations' as a law between states -
begins with the work of Emer de Vattel in the mid-18th century, whose approach
came to occupy a dominant position in doctrine from the late 18th until the
mid-19th century.
c. Trindade imo starts a holistic approach with history of individual in I law : starts
from way back in 17-18th centuries.
2. Authors before Vattel

a. Hugo Grotius (1583-1645) referred to the 'law of nations' or jus gentium; he did
not envisage a law exclusively concerned with relations between states, but rather
a law between the rulers of nations-those exercising public power-and between
groups of citizens or private individuals not in a domestic relation to each other.
Grotius' law of nations was not an inter state law, but an inter-individual law,
applicable on a universal basis.
b. Vitoria's idea of an international society was based on the concept of a universal

community which encompassed all mankind, an organized community of peoples
which were themselves constituted politically as states.
c. Suarez conceived of a rational basis of the law of nations as the moral and
political unity of the human race. The sources of this law of nations were believed
to be natural law principles, which were merely supplemented by tacit or express
agreements between sovereign
princes, which bound them in a personal capacity.

d. But this conception was not consistent with what came to be the orthodox view.
Rather, drawing upon the work of Vattel, by the end of the 1 9th century there was
general agreement on the scope and subjects of international law, which implied
inter-related doctrines of legal personality and designated the individual as an
object(rather than subject) of international law
e. Being an object possibly meant, being dependent on other subjects for rights;
dependency and derivative rights
3. 19th Century I law system

a. In 19th and early 20th century - states were the exclusive subjects of International
Law. Individuals simply did not have rights/obligations and could not participate
or bring international claims.
b. To protect or benefit individuals, this was achieved through the imposition of

obligations on states, rather than by the conferral of international law rights on
individuals. Examples are piracy and slavery abolition
i. Piracy jure gentium was a special source of national jurisdiction which

permitted states to prosecute individuals under their municipal law;
international law did not directly impose obligations on individuals in
respect of piracy; rather it endorsed the power of states to prosecute
individuals.
ii. The abolition of slavery also operated exclusively through inter-state
obligations, imposed by treaty in which the individual was an object of
beneficial regulation
c. Exceptions - two
i. Individuals were allowed legal standing (but no substantive right still) : the
Central American Court of Justice, which permitted individuals to seise the
Court with questions of 'violations of treaties or conventions'
1) The Court, which was in operation for a decade, examined five cases
brought by individuals; the one case held admissible was decided in
favour of the respondent state. There was no specific requirement that
the relevant treaty or convention ascribe a particular right to an
individual to form the basis of a claim; rather individuals were treated
as having standing to complain that a state had violated an inter-state
obligation. The Court thus treated individuals as having the capacity to
bring international claims, but that capacity was not specifically linked
to individuals as substantive right-bearers
ii. Belligerent Rights : belligerent rights were recognised for groups and
individuals who did not necessarily have a valid claim to statehood. This
occurred through a process of recognition by states: in this way, states
remained gatekeepers of the international legal system
4. Inter-way period
a. There was significant development in respect to individual rights but no change
occurred in orthodox account of I law
b. In 1928, the Permanent Court of International Justice (PCIJ) held in the Danzig
Opinion that the object of a treaty 'may be the adoption by the Parties of some
definite rules creating individual rights and obligations and enforceable by the
national courts
i. So even though individuals were given rights by a treaty between Poland
and Denzing; nothing much changed
ii. While this is now commonly cited as recognising that individuals could hold
international law rights and obligations, at the time this was not generally

international law rights and obligations, at the time this was not generally
accepted as an accurate analysis-not least by influential members of the
Court itself
c. In practise however, more and more areas of I law were given individual rights;
ex: Human rights to minorities or humanitarian rights etcetera but these were
largely politically motivated and had nothing to do with the individual or
transforming the account of international law
• So now, lets return to the first debate that rose at beginning of the paper:-
1. What is the motivating force for this structural change in international law? - Kate states
that structural transition has happened due to a need to manage and address practical
problems rather than resulting from any deliberate attempt to effect a structural
transformation
2. Gives Three prominent examples for this

a. Development of International Criminal Responsibility : It was created as a result
of disagreement among the allied powers on what to do with Nazis. Nuremberg
Trials initiated to try them for their individual crimes as heads etcetera
b. Development of international human rights law : In backdrop of WWII to save
individuals from ill treatment outside and inside their state
c. Device of diplomatic protection and protection of foreign investments : Due to
interconnectivity, globalization and all there was increased movement of people
and hence the need to prescribe minimum protections for aliens emerged
• International Legal personality as the measure of engagement

1. In post 1945 international legal system it has been accepted that, to the extent that
entities other than states 'directly possess' rights, powers and duties in international law
they may be regarded as subjects of international law
2. This development can be traced to the Reparation cases

a. The ICJ introduced a variegated approach to the subject categorisation, holding
that the extent of a subject's rights, duties and capacities in the international legal
system 'depends on the needs of the [international] community.
3. Individual being qualitatively different from states as subject of I law

a. The subjects of international law are not identical
b. States possess the full range of rights, duties and attendant capacities, whereas
other subjects may have more limited rights, obligations and capacities.
c. The variegated approach to subjects of international law has the consequence that
there are qualitatively different subjects.
i. At one end of the spectrum, a state, which has a complete ability to acquire
rights, obligations and capacities and to enter into legal relations is apt to be
described as a subject of international law; while at the other end of the
spectrum, a non-governmental organisation which is recognised by a single
inter-governmental organisation as having standing before it is also apt to be
described as a subject of international law.
ii. There must be significant qualitative differences between the two ends of the
spectrum.
iii. Yet in orthodox doctrine there are no criteria for locating subjects according
to the measure of their rights, obligations and capacities. Thus the variegated
approach to the doctrine of subjects has exposed a fundamental deficiency of
the doctrine: that the identifier 'subject' has no objective and meaningful
content, since it denotes no particular capacities: hence it fails to provide any
revealing description of the relationship of the entity to the international
legal system.
4. The way out of this problem (of not being able to give an objective formal status of

4. The way out of this problem (of not being able to give an objective formal status of
rights and obligations of an entity) is the participation approach
a. Professor D.P. O'Connell suggested that the term 'international legal personality'
should be discarded in favour of identifying particular capacities of relevant
entities.
b. Dame Rosalyn Higgins, who rejects the subject/object dichotomy as having 'no
credible reality and... no functional purpose' ,so argues that within the process of
international law there are a variety of participants who make claims
corresponding to their values." Within this framework, what matters is not the
designated status of an entity but its actual exercise of functions.
c. Professor McCorquodale also argues in favour of the notion of participation,
suggesting that it connotes greater flexibility than the binary categories of subjects
and objects, and that this flexibility reflects current doctrine, as reflected in the
ICJ's treatment of international legal personality
d. A similar approach is advocated by Christoph Schreuer, who prefers to examine
the relationship of entities to the international system by an examination of their
functions.
e. Hence, these notions of capacities, participation and functions are conceptually
useful because they suggest that what is significant is not the formal status of an
entity, but its actual ability to engage in the international legal system in a given
context.
5. Hence, two such capacities can distinguish entities which have autonomy and
independence in the international legal system (termed, for convenience, 'autonomous
subjects') from entities which have only limited and passive capacities in the
international legal system ('passive subjects').
a. Can it control when it receives international rights/obligations or capabilities or

can they be imposed on it without its consent also
b. Can it control access of others to international legal system : i.e. Whether it is a
gate keeper for others
6. So if you look at individuals with this standard, it is clear that they neither have control
on either of the factors and their participation in the international legal system is
dependent on other actors in the ILS : hence their status is somewhere between objects
and independent/autonomous subjects.
• Reading Six - Trindade; only annotated parts

• Reading Name : The Historical position of the individual in International Law. Antonio
Trindade, “The Historical recovery of the human person as subject of the Law of Nations”
1(3) Cambridge Journal of International and Comparative Law
• While Kate started her observation of international history from 19th century, Trindade states
how it started long before that and humans were recognised as subjects of IL.
• Takes example of 16th century writers who spoke of humans along with states as subjects of
international law.
1. Francisco de Vitoria's doctrine flourished, whereby the law of nations regulates an
international community (totus orbis) constituted of human beings organized socially in
States and coextensive with humanity itself. He also stated that same principles of
justice applies to states and humans
2. Alberico Gentili held that the law of nations was `èstablished among all human
beings’’, being observed by all mankind
3. Francisco Suárez stated that the law of nations discloses the unity and universality of
humankind, and regulates the States in their relations as members of the universal
society

• In the 17th century, Hugo Grotius sustained that societas gentium comprises the whole of
humankind, and the international community cannot pretend to base itself on the voluntas of
each state individually
1. The state is not an end in itself, but a means to secure the social order in conformity
with human reason, so as to `ìmprove’’ the common society which encompasses the
whole of humankind.
2. Human beings—occupying a central position in international relations—have rights vis-
à-vis the sovereign state, which cannot demand obedience of their citizens in an
absolute way.
• In 18th century, the grotian legacy continued

1. Samuel Pufendorf sustained as well the subjection of the legislator to human reason
2. Christian Wolff pondered that, just as individuals ought to—in their association in the
State—promote the common good, the state on its turn has the correlative duty to seek
its perfection.
• However, in the 19th century, the centrality of humans in discourse of IL began to change :
Exclusion of the Individual from the International Legal Order by the Distortions of Legal
Positivism
1. While the founding fathers had conceived a truly universal system, the rising power of
positivism toppled that conception
2. Positivism established the free will of each nation/state as the supreme thing -
international law ceased to exist as something 'above' the states and became something
'between' the states
a. This threw human rights from the centre and now, the consent and will of the
states became the central criterion, reducing human rights to what states thought
fit to be given (dependency af)
3. But soon this ultimate freedom of state and subjugation of human rights presented its
problem- in the irresponsibility of the state and the atrocities it committed on humans
(colonialism, apartheid, world wars, Nazism, fascists, plunder of the environment,
hostility among nations etc)
4. In this light, came the understanding to resituate individual once again as the subject of
international law.
• The Legal Personality of the Individual as a Response to a Necessity of the International

Community
1. States that human had always been subject of national and international law directly or
indirectly
2. Example
a. Experiments of the minorities - The ‘Minority system’ was majorly imposed in
Europe post the first World War, even though the system existed before that, since
the regions between Germany and Soviet Russia were freed, and these regions
came with their own ethnic groups which suddenly became a part of the
international community. The successor states were compelled to sign minority
rights treaties as a precondition for recognition i.e. for a seat on the table as a
sovereign nation. These nations were made to say that they would not negatively
affect the minority rights in our territories. However, if the minorities were
affected negatively, they could appeal directly to the League of Nations. This
shows that an individual had a direct recourse to an international body. This could
show that the individual had space at the international stage. However, if we look
deeply, it could be seen that these treaties were pushed onto the successor states
because the victors wanted to maintain scrutiny over them. If a minority were to
come up with a grievance, the victors could impose sanctions upon the successor
states. This was a method to control the losing group and was simply a power play
between the States disguised as the championing of minority rights (i.e.
practicality over genuine need for change - Kate discussed this as one reason for
change in I law)

change in I law)
b. Mandate system under LoN
3. Development of both human rights and humanitarian rights ensued

a. For humanitarian rights - what clearly ensues from the fact that the four Geneva
Conventions plainly prohibit the states parties to derogate—by special
agreements—from the rules enunciated in them and in particular to restrict the
rights of the persons protected set forth in them
4. Thus, international humanitarian law gradually freed itself from a purely inter-state
obsolete outlook, giving an increasingly greater emphasis—in the light of the principle
of humanity—to the protected persons and to the responsibility for the violation of their
rights
• The individual's presence and participation in the international legal order

1. An attempt at defining subject at the international level is seen through the capacity to
be part of law making process to say that individuals rarely take part and hence should
be removed as subjects
a. Author counters - even in the domestic field, not all subjects engage or participate
in law making directly or indirectly - but that does not mean that they are not
subjects of domestic law) - hence same of i law.
b. They also fail to see how certain individuals have already began participating in i
law and elaboration of norms of i law
i. See example of NGOs and other civil society entities : they are very visible
in travaux prep of recent treaties, in UN Conferences (lobbying and
participating), as amicus curiae to international tribunals (like ICTY and
ICTR or European courts of Human R)
ii. This will be seen in a great(great damn) detail in last three-four readings
concerning NGOs/
c. Hence, the process of formation and application of norms of i law has ceased to be
a monopoly of states
• Rescue of individual as subject of international law

1. The present day idea of citizen as subject isn't the same as that which the founding
fathers were propounding. They were constructing 'civitas maxima' - a higher
citizenship of common good. The present position is merely to provide certain universal
standards of justice, as the basis of the imperatives of protection and the superior
interests of the human being, irrespectively of his link of nationality
2. Examples of this (incredibly long list coming up)

a. The idea of the direct access of the individuals to the international jurisdiction,
under certain conditions, to vindicate their rights against States, a theme which
came to be effectively considered by the Institut de Droit International in its
sessions of 1927 and 1929.
b. André Mandelstam warned as to the necessity of the recognition of a juridical

minimum—with the primacy of international law and of human rights over the
state legal order—below which the international community should not allow the
state to fall.
i. In his vision, the horrible experience of our time demonstrated the urgency
of the necessary acknowledgement of this juridical minimum, to put an end
to the unlimited power of the state over the life and the freedom of its
citizens, and to the complete impunity of the state in breach of the most
sacred rights of the individual.

c. Georges Scelle criticized the fiction of the contraposition of an inter-state society
to a (national society of individuals: one and the other—he pondered—are formed
by individuals, subjects of domestic law and of international law, whether they are
individuals moved by private interests, or else endowed with public functions
(rulers and public officials) in charge of looking after the interests of national and
international collectivities
i. Scelle then identified the movement of extension of the legal personality of
individuals, by means of the emergence of the right of individual petition at
the international level
d. Albert de La Pradelle : The strictly inter-state outlook is a particularly dangerous

one; attentions ought to focus on the general principles of law, emanating from the
juridical conscience, pursuant to jusnaturalist thinking, conforming a true ``droit
de l'humanité’’, so as to secure respect for the rights of the human person
e. Also in the American continent, in the twentieth century, even before the adoption
of the American and Universal Declarations of Human Rights of 1948, doctrinal
manifestations flourished in favour of the international juridical personality of the
individuals
i. Authors like Alejandro Ãlvarez54 and Hildebrando Accioly opined in this

favour.
ii. Levi Carneiro wrote, in this respect, that ``no doctrinal obstacle subsists to
the admission of ndividual claims to international justice. The individual is
increasingly of concern to international law’’, as ``the State, created in the
interest of the individual, cannot overcome this latter’’
iii. Philip Jessup, in 1948, pondered that the old conception of State sovereignty
was not consistent with the higher interests of the international community
and the status of the individual as subject of international law
f. Hersch Lauterpacht asserted that the individual is the final subject of all law there
being nothing inherent to international law impeding him to become subject of the
law of nations and to become a party in proceedings before international tribunals.
g. Maurice Bourquin pondered that the growing concern of the international law of
the epoch with the problems which affected directly the human being revealed the
overcoming of the old exclusively inter-state vision of the international legal order
h. Max huber in attesting the ``devaluation’’ of the human person and the social
``degradations’’ at the interior of the states, from 1914 until then, sustained a ius
gentium, in the line of jusnaturalist thinking, centred on human beings and not on
the states
i. International Court of Justice, in the case of the Jurisdictional Immunities of
the State (Germany v Italy, with Greece intervening, Judgment of 3
February 2012), in my recent and extensive Dissentinng Opinion appended
thereto, I had the occasion to rescue this doctrinal thinking (paras. 32-40),
forgotten in our days, particularly the writings of de la Pradelle, Huber and
Ãlvarez, singling out fundamental human values.
i. Constantin Eustathiades linked the international subjectivity of the individuals to

the broad theme of the international responsibility (parallel to that of the states).
i. As a reaction of the universal juridical conscience, the recognition of the
rights and duties of the individual at the international level, and his capacity
to act in order to defend his rights, are linked to his capacity to commit an
international delict; international responsibility thus comprises, in his vision,
both the protection of human rights as well as the punishment of war
criminals (forming a whole)

criminals (forming a whole)
ii. This development heralded the emancipation of the individual from the
tutelage of his own State; thus, one cannot deny the individual’s condition of
subject of international law
j. Similalrly, Paul Guggenheim : as the individual is subject of duties at the

international law level, one cannot deny his international legal personality,
recognized also in fact by customary international law itself.
k. In application of the European Convention on Human Rights, there was support

for the view that the individuals had become titulaires of legitimate international
interests, as, in international law, a process of emancipation of the individuals
from the exclusive tutelage of the State agents had already started.
l. In the legal doctrine of that time the recognition of the expansion of the protection
of individuals in the international legal order became evident. In the lucid words
of Röling, the overcoming of legal positivism was reassuring, as the individual,
bearer of international rights and duties, was no longer at the mercy of his State,
and: `[h]umanity of today instinctively turns to this natural law, for the function of
law is to serve the well-being of man, whereas present positive international law
tends to his destruction.
i. This view was in keeping with the posture upheld by the Japanese jurist
Kotaro Tanaka, in his Opinions in cases before the ICJ at The Hague in that
epoch, that is, an international law transcending the limitations of legal
positivism, and thus capable of responding effectively to the needs and
aspirations of the international community as a whole.
m. René Cassin stressed with eloquence the advance represented by the access of
individuals to international instances of protection, secured by many human rights
treaties: If there still subsist on earth great zones where millions of men and
women, resigned to their destiny, do not dare to utter the least complaint nor even
to conceive that any remedy whatsoever is made possible, those territories
diminish day after day.
n. Paul Reuter : individuals become subjects of international law when two basic
conditions are fulfilled, namely, when they are titulaires of rights established
directly by international law, which they can exercise, and are bearers of
obligations sanctioned directly by international law.
o. Eduardo Jiménez de Aréchaga : to whom there is nothing inherent to the structure

of the international legal order which impedes the recognition to the individuals of
rights that emanate directly from international law, as well as international
remedies for the protection of those rights.
p. Barberis pondered in 1983 that, for individuals to be subjects of law, it is

necessary that the legal order at issue attributes to them rights or obligations (as is
the case of international law).
3. The international subjectivity of the human being (whether a child, an elderly person, a
person with disability, a stateless person, or any other) erupted indeed with all vigour in
the legal science of the twentieth century, as a reaction of the universal juridical
conscience against the successive atrocities committed against the human kind.
a. An eloquent testimony of the erosion of the purely inter-state dimension of the
international legal order is found in the historical and pioneering Advisory
Opinion n. 16 of the Inter-American Court, on the Right to Information on
Consular Assistance in the Framework of the Guarantees of the Due Process of
Law (of 1 October 1999)
i. The IACtHR recognized, in the light of the impact of the corpus iuris of the

i. The IACtHR recognized, in the light of the impact of the corpus iuris of the
international law of human rights on the international legal order itself, the
crystallization of a true individual subjective right to information on
consular assistance, of which is titulaire every human being deprived of his
freedom in another country
ii. Furthermore, it broke away from the traditional purely inter-state outlook of
the matter, bringing support to numerous individuals victimized by poverty,
discrimination, and deprived of freedom abroad.

Prof V
28 September 2020 09:14
• Readings for Vivek's part of the paper :White(done), Tams(done), Rafael Nieto (done),
Sinha(done), Chimni(done), Thurer (done), Charnovitz (done), Maisley
• Reading Seven - Thurer

• Reading Name : Daniel Thurer, “The Emergence of NGOs and TNCs in International Law
and the Changing Role of the State” in Rainer Hofmann (ed.), ‘Non-State Actors as New
Subjects of International Law’ 37 (1999)
•
• A Rule of Law justification for seeing NGOs as a subject of International Law - this is in line
with the earlier readings that were concerned with diversification of the term 'subject' under I
law
• New non-state entities like NGOs and MNC/TNCs are growing today - and while they might
not be full fledged 'subjects' like states, they have certain influence in i law and how its legal
structure and entities changes
• Concept of Statehood in Modern I Law

1. Changing Notion of Sovereign Statehood
a. Sovereignity is not just the highest authority under i law within territorial limits of
a jurisdiction - it is not just the negative right to "not be influenced"
b. As propounded by scholars like Jorg Paul Muller state that it also includes the
effective power to grant, realize and implement certain basic values inherent in the
principle "rule of law" understood in substantive sense
c. Max Huber in Palmas Case also stated that sovereignity includes not just
excluding the activities of other states but also being obligated to award minimum
protection to humans
d. Hence, from a mere negative conception, sovereignity also includes a positive
conception (value laden) - it means capacity to realize human rights and other
basic values recognized by the international community
e. Two more changes in the I law conception of statehood
i. Federalizing (vertical changes) - Changes in functions as state performs; due
to greater diversity of participants, the state monopoly over certain functions
is diluting
ii. Globalization (horizontal changes) - Shift of power from the system of
public order to the realm of private actors; leading to a highly developed
private international economic order (like we saw in maria reading)
iii. Then it seems that statehood is changing like ink threads into wood -
vertically and horizontally, getting weaker as it moves away from centre.
• Key question to be asked

1. If state is a legal entity that provides and facilitates basic values of justice and rule of
law, to understand new non-state actors, we must look at how they assist (enhance,
assist and strengthen and enable) states in doing the above.
2. By the way, the way this paper/ author seem to suggest the ultimate end of law is
human or societal welfare (that's what justice and rule of law is for). Thus, by defining
the modern state in this manner, the paper has already situated the individual at the
heart of IL
3. Hence, the key question is - whether the emergence of new transnational (global)
entities lead to a decline or otherwise affect the role of states?
• NGOs
1. General Development
a. NGOs have existed long before but it is NGOs have been around since the middle

a. NGOs have existed long before but it is NGOs have been around since the middle
19th century, but only recently have they come to occupy a place on the policy-
making table and its execution in the length and breadth of the globe. The author
identifies a few reasons for the same:-
i. They helped spread 'freedoms' through the world : Particularly within the
powerful society union during cold war, they embodied the awakening of
"civil society" and claimed rights for political, cultural and economic
freedom; after USSR dissolution, they also helped create democratic and
free market institutions
ii. The focus of international relations shifted to 'low politics' : During cold war
only when below belt activities had more power than those over it. So lower
politics which were on international agenda but largely unattained to were
taken up NGOs etc - like human rights, environmental protection or women
rights
iii. The stranglehold of states on opinion loosened with the internet : Monopoly
over information and trans border communication loosened from state
control; change for NGO to truly integrate world
2. It remains a fact that they are not equal to intern governmental organisations
a. When this paper is written NGOs did not have a status of subjects of IL; IOs did.
b. So like IO, NGO personnel do not have special privileges or immunities etcetera
under I law
i. Though they might be given such status by the virtue of them being part of
some treaty as parties or beneficiaries: Ex : Article 71 of UN Charter - " The
ECOSOC may make suitable arrangements for consultation with NGOs
which are concerned with matters within its competence. Such arrangements
may be made with IOs and, where appropriate, with national organizations
after consultation with the Member of the UN concerned.”
ii. Thus, consultation with NGOs in making IL (thru ECOSOC) has been
provided for since 1945!
3. Impact of NGOs
a. Some ex. Of treaties/declarations etc. which benefitted from the engagement of
NGOs
i. Agenda of International conferences like Rio on global environment, Vienna
of human rights etc
ii. Development of new international instruments like Rome statute etc
iii. Providing expert knowledge in fields like human rights etc
iv. Monitoring implementation of international law and guiding political
principles
b. They have become basic form of popular participation and representation in the
present day world : Ex UN Sec Gen, Bourtos
c. They have become the juridical conscience of international community and
introduce an independent stance (probably apolitical?) in I law
d. Hence, they remind, support states to carry out those tasks which are inherent in
the concept of statehood as we discussed earlier - guardians of values and
principles of humanity and help promote public interests of those living and acting
within state jurisdictions.
• Transnational enterprises : like NGO, they are also formed under domestic laws and plan and
act like NGO across borders
1. But ofc like NGOs they are not made to fulfil a public purpose but are profit minded
entities and instead of striving to help states, they are often rivals of state control
etcetera
2. They are not creations of one legal system and cannot be controlled by one or more
combination of legal systems
3. They are triumph of economic power and legal ingenuity operating on a scale which

3. They are triumph of economic power and legal ingenuity operating on a scale which
transcends and at times dwarfs authority of individual states; inevitable that they might
want to make use of the fragmented political systems(each state being their own
sovereign) and global economies, hampering public interest
4. In yesteryears, when economies were strictly national, national powers were able to
control and supervise them; but today, we are witnessing a lack of adequate control,
transparency and responsibility.
5. They evade rules concerning social justice, environmental protection, tax (evasion and
dumping)
• So like, how does it help sovereignity of statehood? - by giving it good practice sess to try
and control and discharge its positive duties? In conclusion , author states that bro TNCs
definitely affect state sovereignity and law must be extended to control them
• Reading Eight : Charnovitz

• Reading Name : Steve Charnovitz, “NGOs and International Law” 100 American Journal of
International Law 348 (2006)
• This readings highlights NGOs as participants in the international process
• NGOs have exerted a profound influence on the scope and dictates of i law
1. Not that they can always influence states - in fact, very often they fail to change the
behaviour of states (for many reasons. I believe like censor by certain types of
governments like the present government and exit of Amnesty international; author
gave one reason that NGOs are often not one united front and within them, diff NGOs
represent diff interests).
2. Anyway, as put by Elihu Root, Most NGO are not consciously endeavouring to develop
international law, but they are building up customs of private international action. They
are establishing precedents formulating rules for their own guidance, many of them
pressing for uniformity of national legislation and many, urging treaties and
conventions for the furtherance of their common purposes.
3. Baldwin too accedes how transnational individual action could change the behaviour of
states. As the public congress matured into Ios, the private groups developed more
direct forms of advocacy than holding their own assemblies and drafting resolutions for
governments. Instead, they found ways to attach themselves to Ios and to be present at
international negotiations in order to lobby for manifold causes.
• What are NGOs?

1. Groups of persons or of societies, freely created by private initiative, that pursue an
interest in matters that cross or transcend national borders and are not profit seeking -
they could have both public and specific/single interest (like labour unions etc)
2. Why no one talks about the political associations of NGOs?
• NGO function in international law

1. Very prolific in creation of new fields of law and new treaties
a. Ex: Creation of Inter-American Commission of Women : created by work of
women groups
b. Ex: NGOs advanced the language of UN Charter on Human rights and helped in
drafting the UDHR
c. Even aid workings of ICC
d. Help indigenous rights etcetera
2. Engaged in interpretation of International law
a. Helped develop the Siracusa Principles
b. ICRC (red cross) helped a broad construction of fourth Geneva convention to
include rape as a crime under international humanitarian law
3. NGOs as amicus curiae to international tribunals (major ones have procedures that
allow NGOs to submit information or statement on pending cases - except of ICJ for

allow NGOs to submit information or statement on pending cases - except of ICJ for
some reason)
a. Though their power to initiate cases in these forums is much limited - only some
allow : see para 3 on page 354 for tribunals that allow them to initiate cases
4. NGO are engaged in the review and promotion of state compliance with international
obligations
5. NGOs also assist in collective enforcements efforts
• Legal Status of NGOs

1. Legal Personality : It allows bodies to have rights and immunities and standing before
courts
a. Has it under municipal law
b. But not so much under international law
i. But since they act under so many different laws and are not able to carry
their legal status from one country to another; international organisations
like IDI and ILA have been trying since 1910 for a treaty to recognise their
legal subject hood (IDI put two drafts in 1923 and 1950 for the same) to IL
but haven't seen much success
ii. So they have devised other alternatives to formal subject hood - like ICRC,
red cross and red crescent etcetera have signed headquarters agreements
with numerous states that provides them with certain privileges and
immunities
iii. Giving international subject hood might help better solve interstate conflicts
and may further the general interest of the international community but also,
on other hand, states are worried that international recognition to NGOs can
reduce governmental control over them
2. Legal status as a consultation partner

a. Given under Article 71 of UN charter
i. grants them a role of consulting partner (reflects IO constitutive practice) -
result of their entrepreneurial role in San Francisco conference for lobbying
the article.
ii. 71, though it is explicitly for ECOSOC, it eventually extended its domain to
all UN systems. Further, its operational rules have also been made easy,
leading more NGOs to participate. Ex: ECOSOC's NGO Rules required two
compulsory rules - "recognized standing" and "representing substantial
portion of organized persons within the particular field in which it operates."
Further rules of 1950 also preferred international rather than national NGOs.
The two compulsory rules are now "or" clause i.e. NGO must have
recognised standing or must be of representative character. The other rule of
preference now does not exist.
b. First time they were given such inputary role was 1905 convention creating the
international institute of agriculture
c. Similarly the Article 25 of LoN charter - established extensive co-operation
between LoN and red cross movement (these LoN red cross societies spearheaded
the creation of convention that founded international relief union providing a
consultative capacity to relief organisation)
• NGOs influencing I law

1. They have generally been promoted by all important I law people
a. Jose Alvarez points how NGOs have changed forever the form and content of I
law
b. Stanley Bailey wrote how the personified(positivistic) state conceals the fact that
greater part of the world order is build out of innumerable individual and group
association (which are not part of governmental order)
c. Philip Jessup + Adolf Lande + Oliver Lissitzyn stated how private international
organisations have tore down the governmental wall between private interests and
international society; making international law more responsive to the needs to

international society; making international law more responsive to the needs to
international community
d. Rosalyn Higgins (dope judge) stated NGOs are phenomena that affect reformation
of international law (from the state centric, positivist notion, who pitfalls we have
already seen) and changing notions of identities of uses and beneficiaries of
international law
2. Reasons of influence of NGOs

a. NGOs are competitors
i. They have advantage of being independent and are not required to champion
a particular governmental or national interest - so in a way, more candid and
close to truth?
ii. They creatively construct and encourage newer forms of independent world
and focus on representing social interest
iii. To do all these, they need the spot light and international attention : hence
need to be competitive in generation of rich debates and politics
iv. Further many states, IO and NGOs have symbiotic relationships - NGOs
often provides resources, personnel, garner public support (for IO and state)
and help localize and internalize norms at the domestic level
• Duty to consult NGOs

1. Does state have duty to consult NGO for IO etc and itself in multilateral negotiations?
a. Rn, answer is no
b. But instructively reading some treaties etc, a duty may be inferred (but generally
speaking, these following provisions are too loose to demonstrate a duty and
simply seem giving an option or permission to consult NGOs)
i. International Covenant on Civil and political rights
ii. American Declaration of rights and duties of man
iii. Convention on land mines
iv. Largely ngo consultation is permissive rather than mandatory in these
provisions
v. Exception to this is environmental treaties like CITES. But again, these use
words like "may" and "shall" and are far from determinate; granting mere
observatory status to NGOs
vi. The argument against consulting them internationally comes from the fact
that domestically also they have no duty to be consulted
2. The practice to consult is widespread and expanding
3. Only few multi lateral agencies continue to resists adopting NGO consultation process -
like WTO or ILC
• Reading Nine - Maisley

• Reading Name : Is there a Right to Participate for Individuals/NGOs? Nahuel Maisley, “The
International Right of Rights? Article 25 (a) of the ICCPR as a Human Right to take part in
International law-making” 28 (1) European Journal of International Law 89 (2017)
• Reading Ten - White

• Reading Name - Placing Equity among the Sources of International Law. Margaret White,
“Equity – A General Principle of Law Recognised by Civilised Nations?” 4(1) Queensland
University of Technology Law and Justice Journal 103 (2004)
• White explores whether equity is a general principle of international law

• Equity in a sense, corrects the wrongs of the law
• Equity in international law is different from equity in municipal or domestic law
• Traces the history of equity (Hittite treaties with their neighbours in the 14th and 13th
centuries BC). The concept existed in many societies and cultures and religions in different

centuries BC). The concept existed in many societies and cultures and religions in different
forms. The equity that exists in I law is related to western legal traditions (relate to treaty of
Westphalia) and was influenced by Aristotle.
• Aristotle is famous for his idea of universality of law when he argued for universality of law
that should be applied to all the human kinds he also gives the systematic correction of
shortcomings of law. He argues universality he does not lose the sight there is injustice also
and that can be corrected by equity.
• Talks about the development of equity in Roman law and English Law. Equity in Roman
Law was contained in jus honorarium. It supplemented by granting remedies to persons who
did not have rights of action at civil law.
• Grotius- referred to the Aristotelian idea of equity as twofold - being an understanding of

what was right and just as well as in its corrective capacity to moderate the general law,
equity must be applied with an abundance of circumspection. I.e. Grotius refers to Equity as:
an understanding of what is right and just, in a corrective capacity, to moderate the law
• Pufendorf – to a standard of prudence – sentiments echoed in modern international law

jurisprudence
• Equity in civil law systems- general clauses designed to ensure an equitable interpretation of
statutory provisions against a too strict or formalistic interpretation, were inserted into the
various, making those systems rather closer to the Aristotelian idea of equity.
• Art 38 makes no express reference to equity
• The word general principles refers to both principles of international law and principles
common to international law and various municipal systems of law.
• This lead to a conflict between civil law and continental Europe + Latin America, former
wanted to restrict sources to treaties and customs (they felt Gp will give judges too much
power)while the latter wanted to expand the sources to avoid on liquet – a situation in which
a court declares itself unable to resolve a dispute due to an absence of applicable law on the
subject.
• A consensus was reached when they decided that GP should be “fundamental laws of justice
and injustice” (direct emanation of the idea of justice ). This, he thought, would limit the
liberty of judges and prevent them from relying on subjective considerations, objective
justice.
• Although the majority of the Advisory Committee was prepared to accept that equity would
play a role in the new Court’s decisions, they were not prepared to accept equity as an
independent source of international law because of the different understandings accorded to it
in different systems (too vague and, necessarily, too fraught, a term to be included), equity
helps with interpretation.
• The general understanding of the drafters of Article 38 appears to have been that equity itself
was not an independent source of law, since it was too vague a concept to command universal
acceptance but that particular equitable principles, as recognized within the various legal
systems of the world, might play a role as ‘general principles’ of international law (this helps
limit equity).
• Equity in common law

1. estoppel or acquiescence (he gives examples of cases pg. 111-112)
2. Unclean hands
• Equity in the domestic sense is always seen to be something that is opposed to law and the

• Equity in the domestic sense is always seen to be something that is opposed to law and the
letter of the law (Equity contra legem). However, in the international system, it is seen and
constructed as the spirit of the law and is applied within the framework of the law, and
therefore completely opposite to the scenario in the domestic law. Equity would be applied in
a manner that would serve best the purpose of the law. Thus, if a law can be interpreted by
one way, equity can be applied where it can serve the best. Equity becomes a tool of
interpretation. Equity becomes limited in the sense that judges cannot make new laws.
• Prof. Rosanne talks about the constraints that equity faces. He says that equity does not
automatically work to correct a decision where the strict application of law results in an
unsatisfactory conclusion. The only instance where the principle of equity can come into
place if it is recognized by civilized nations, and if there is consent. If there is a consensus
within the civilised nations that equity should be applied to reverse an unsatisfactory
decision, only then can equity become irrelevant
• Equity in I law
1. In the case of Diversion of Water from the River Meuse. It would seem to be an
important principle of equity that where two parties have assumed an identical or a
reciprocal obligation, one party which is engaged in a continuing non- performance of
that obligation should not be permitted to take advantage of a similar non- performance
of that obligation by the other party. The principle finds expression in the so-called
maxims of equity which exercised great influence in the creative period of the
development of the Anglo-American law.
2. Some of these maxims are, “Equality is equity”; “He who seeks equity must do equity.
Judge Hudson denied the relief sought by the Netherlands on the basis that it was itself
guilty of the same breaches which were alleged against Belgium.
3. The doctrine of clean hands was also relied upon by Judge Schwebel in the Nicaragua
case. Nicaragua brought a claim against the United States alleging that by its financial
and logistical support for rebel groups in Nicaragua it had unlawfully intervened in
Nicaragua’s affairs. Judge Schwebel would have disallowed Nicaragua’s claim due to a
combination of what he found to be Nicaragua’s support to rebels in El Salvador
predating the United States’ assistance to the Contras in Nicaragua, and Nicaragua’s
subsequent misrepresentation of the facts about its El Salvador involvement before the
International Court. He found that Nicaragua had deprived itself of standing to bring the
claim against the United States because the conduct of the latter was consequential upon
Nicaragua’s own illegality.
4. Estoppel: Serbian Loans case - Serbia had an agreement with French bond holders, and
the bondholders were to be paid back in the form of gold francs. However, the loan
from bond holders was being paid in the form of depreciated paper francs instead of
gold, and Serbia started paying consideration through paper francs. Serbia claimed
estoppel since the French bond holders had started to accept the paper francs. The PICJ
said that there is no estoppel. There was no change in the position of debtor state.
However, the form was not of essence, and since consideration had been delivered and
the amount had been paid back fully without any breach of contract, it would be unfair
to apply the principle of estoppel. ICJ applied the concept of estoppel.
5. Acquiescence: Temple of Preah Vihear case – Dispute over temple near border
between Thailand and Cambodia. Thailand had accepted the map which put the temple
within Cambodian territory. The court was reluctant to apply estoppel, since it is not for
the purposes of rectifying injustices (due to the limited scope of equity). Court would
apply only where the law demands. [Case has been explained thoroughly on page 45 of
these notes - ‘Subsequent Practice’]
6. Clean hands doctrine: It can be seen in the dissenting judgment of Tehran Hostility

6. Clean hands doctrine: It can be seen in the dissenting judgment of Tehran Hostility
case – Occupation of the US embassy in Tehran by militants. USA brought a claim
against Tehran in the ICJ court pursuant to the treaty of amity, economic relations and
counselor rights. The US tried to rescue hostages by force and economic sanctions.
Majority ruled in favour of the USA. Judge Morosov was against the US - He said that
the USA by invading Iran and imposing sanctions, it had committed a wrong. The treaty
in question was the treaty of economic right and counsellor relation. J. Morosov said
that the retaliation and other coercive measures that were in contradiction of the treaty
cannot be disregarded. The question was 1959 law was violated and the doctrine of
clean hands was applied. Doctrine of clean hands was the general principle. Similarly,
this can be seen in the Nicaragua case, where the aforesaid doctrine had been applied by
Judge Schwebel. Nicaragua talked about how the USA did not respect their sovereignty,
however, Nicaragua also aided rebel groups in other jurisdictions (El Salvador). Judge
said that the doctrine of clean hands was a general principle of law and he believed that
Nicaragua deprived itself of standing to bring a claim against the USA due to the past
conduct of Nicaragua being consequential to this case.
7. Equity will not suffer a wrong to be without a remedy - this principle was discussed in
the Barcelona Traction case. Question was whether equity can be applied and allowing
Belgium to file a claim. Court held that in some cases, the State can take up the cause of
their national citizens. In this case, the shareholders of the company were the victims of
a violation of international law. Thus, focus was shifted to the individuals. However,
the Court chose to not grant standing to Belgium since allowing equity to operate would
create a sense of insecurity and confusion in international economic relations. While the
Court acknowledges that the principle of equity should apply as it feels that not
listening to the claims of Belgium would be unfair to the Belgian shareholders, but still
chose to not do so since the long term implications would be that of confusion etc. In
order to avoid controversy, the Court chose to not apply equity and remain in
consonance with the law.
8. Liberal Interpretation of Equity: In the North Sea Continental Shelf case (Maritime
dispute) of 1969, a more liberal sense of equity has been undertaken, unlike the limited
view taken in earlier examples. It was noted that there are two basic legal notions which
reflect opinio juris. One being that delimitation must be subject to agreement of States
concerned, and second being that agreement must be arrived at in accordance with
equitable principles. In context of delimitation of maritime boundaries, equitable
principles have been recognized as customary international law. In the same case, it was
noted that principles of equity rested on the idea that the judgment must be just, and
equitable. The means of achieving justice is not important, but the end goal of justice is
to be ensured.
9. In the Continental Shelf case, the Court stated that equity was often contrasted with
rigid positivist laws, the rigidity of which had to be mitigated. This is in contrast with
previous judgments, which discussed how contradicting the contra legum is something
that should be avoided. Court talked about how the goal takes predominance over the
means. If justice is not achieved as the end goal, the whole point of equity is defeated.
Author of the article concluded that it is not surprising that the court has avoided a
discussion on equity as an abstract idea. Court has been able to achieve unanimity in
these decisions where equity lies at the heart of the matter, and has created a framework
of principles and thus made the application of equity very predictable. In that sense,
everytime equity is invoked in international disputes, it is always tied to concrete ideas/
facts of the case. This makes the idea of equity a non abstract one. Judge Oliver Nelson
summed up succinctly this discussion by talking about how every case is unique and the
diversity in the matters that the ICJ has entertained and will be doing in the future, and
therefore, the principle of equity will be applied in each case in a unique manner. This
gives the ICJ the real power which can be exercised under Art. 38(2).

10. It has been suggested that the reasoning of the International Court in Barcelona Traction
on this point is evidence that equitable considerations cannot be brought in opposition
to the law: here because application of equitable principles would have ‘opened the
door to legal anarchy
11. North Sea Continental Shelf - equity is a principle of customary international law ,he
acceptance of equity rested on a broader basis, namely, that the decisions of a court of
justice must be just, and in that sense equitable
12. Maritime law and equity The uniqueness of each maritime boundary has rendered
inadequate the application of a global or general rule such as is embodied in the
equitable principle of equidistance, the infinite variety of maritime situation
13. The maxim that “equity will not suffer a wrong to be without a remedy”?
14. White talks about ex aequo et bono- according to the right and good" or "from equity
and conscience". This concept in the context of international arbitration requires that the
parties grant arbitrator(s) power to dispense with the consideration of the law and
consider solely what they consider to be fair and equitable in the case at hand.
• In conclusion, courts haven't been using equity to be an abstract idea. There was a general
unease that unconfined discretion which would repose in judges were they permitted to have
recourse to equity as an unstructured concept. Although there are profound differences
between representatives from different legal systems, courts have reached an unanimous
decision in cases of equity.
• Reading Eleven : Tams

• Reading Name : Judicial Decision as a Sources of International Law. Christian Tams &
Antonius Tzanakopoulos, “Barcelona Traction at 40: the ICJ as an agent of legal
development” 23(4) Leiden Journal of International Law 781 (2010)
• Judicial law-making
• Judicial decisions are a material source, and thus, have to be anchored in formal sources such
as CIL, etc.
• The ICJ cannot make laws by itself and does not have a legislative mandate, however, the
decisions do play a role in the development of international law.
• There is no rule of stare decisis with respect to the ICJ, but there need to be exceptional
circumstances for the ICJ to not stick with its previous decision.
• There are two assumptions about the ICJ

1. it does not have a legislative mandate, and that it still influences laws and
2. is involved in judicial law making. These are conflicting assumptions. Thus, we should
know about the obstacles contributing to development of international law. A primary
obstruction comes in the form of ‘consent’, meaning that parties do not have to be
bound by the decision of the ICJ unless they consent to the decision. Another
obstruction is that the decisions of the ICJ are interstitial, and are only persuasive in
nature.
• Rule of Thumb : Question is not what terminology we use (usage of ‘agents of development
of international law’), what is important is how much of a change the ICJ has had on the
development of international law. There is a rule of thumb that is followed
1. If the judgement of the reasoning is sound, it has the ability to impact the development
of law. Berger asks whether there is cogency in the decision. Another scholar talked
about how there should be a difference between the obiter and the ratio of the judgment,
with focus on the ratio. These two rules of thumb were to be considered to inspect

with focus on the ratio. These two rules of thumb were to be considered to inspect
whether the decision can be useful in developing international law.
• Let’s view these in light of the Barcelona Traction case. Does it fulfil the criteria?
• Criticism is that the answer for both the rules is in the negative. Scholars have criticised it for
not being cogent, and along with that, one of the major points was made in the form of an
obiter dictum, and not as a ratio. Thus, the two aforementioned rules of thumb are not of
much use when it comes to the impact of cases like Barcelona Traction Case.
• Diplomatic claims of the corporation

1. Court took an ‘incorporation plus’ approach/test, but it failed to provide good reasoning
for it. State could exercise diplomatic claims only exceptionally. However, Belgium
was unable to establish any of the following exceptions:
a. if special treaty rules were provided.
b. in special cases concerning the treatment of enemy property and nationalization.
c. if the company ceased to exist.
d. if the even of the institution of the corporation was being disputed
2. There was a debate about how the court ignored the reality, and chose a rigid approach,
by drawing a distinction between the shareholders and the corporation. However, this
criticism is a bit too stretched and the author disagrees with this as the Court chose not
to go into multiple claims since it would avoid confusion.
3. If we view it objectively, the Court was in fact flexible, since it allowed for certain
exceptions to exist shows that it was not absolutely rigid. On the point of diplomatic
claims, the Barcelona Traction case has not been replaced (whereas, the Lotus case on
the point of jurisdiction was replaced). The arguments by scholars to replace this case
have not been very attractive and thus, have not gained any traction and are seen to be
exaggerated and not having relevance. The recent judgment in the Diallo case,
reinforced the decision in the case. The Court left this case open ended so that it may be
used in both the ways. It does not make a very rigid rule and has made it flexible, which
is why it has been able to survive.
• Obligation Erga Omnes

1. The Court made a comment on Erga Omnes and is less controversial. The debate
centers on two issues: what did the court mean by obligation of erga omnes, and,
whether it really matters. The concept of erga omnes was used in a unique way in this
case as it had been used as a tool of enforcement, which is a non conventional way of
using it (Previously used for purposes of standing). Where erga omnes becomes
relevant and applicable.
2. International law protects fundamental laws, erga omnes can be enforced to do the
same.
3. To this special set of rules protecting fundamental rules, there applies a special rule of
standing. To raise a claim, it is not restricted to the idea of nationality (which is
different from the corporation issue in Belgium).
4. Certain fundamental values can be protected by each and every state.
5. These rights and protection do not have to be specially conferred by a treaty, and arise
from general principles of international law.
6. Thus, erga omnes is not as mysterious as it has been alleged to be. The idea of the
concept is that the notion of locus standi is modified for the effective protection of these
fundamental values. In 1966 itself, the court had resisted a case on the basis of locus
standi (South West Africa case). The Court clarified its position in the Barcelona
Traction case.
• Four lessons that can be taken from the Barcelona Traction case (Prof Vfeels that the author
lacks evidence, and feels that these lessons/claims require more evidence).
1. The first lesson is that Courts can be both enthusiastic and reluctant lawmakers. At

1. The first lesson is that Courts can be both enthusiastic and reluctant lawmakers. At
times, it is better to leave the reasoning a little open ended, such as on the topic of erga
omnes. On the issue of diplomatic claims, the Court was reluctant, but it was opposite
on the second issue. It has been a long time since the decision has come and we are still
wondering about the certainty of the same, but this is not necessarily bad as it helps the
law to evolve and be more accommodative of the social changes around us. If there is
too much certainty, even though it might solve the issue at hand, it hampers the
development and evolution of the law.
2. Second lesson was that the rules of thumb are of limited usefulness. A boldly reasoned
statement has the potential to influence the law. For e.g, the Court did not offer a
justification as to why the ‘incorporation plus’ approach was the best test. The Court
did not provide any solid reasoning and only said that they would be using the test.
However, this test is still applied in many contexts today and has impacted the
development of international law. Thus, law can be shaped by obiter too (contrary to
what the rule of thumb discussed). The same can be seen in the Free Zones case where a
major point came in the form of an obiter. One of the most controversial statements
(“restrictions upon States cannot be presumed”) was made in the form of an obiter in
the Lotus case. If we are to analyse this point, we could observe that there is not a
distinction between an obiter and ratio (at least on paper). The Court does not mention
as to which point is an obiter and which is the ratio. This explains as to how obiters in
cases gain more traction, similar to that of ratio.
3. Third lesson talks about how residual rules are more likely to make lasting impact. An
example that is talked about is the Court’s holding on nationality in Barcelona Traction
case. In the observation made by Lauterpacht, he talks about how “judicial legislations
cannot attempt to lay down all the details of the application of the principle on which it
is based. It lays down the broad principle and applies it to the case before it. Its
elaboration must be left ... to ordinary legislative processes or to future judicial
decisions disposing of problems as they arise.” He says that it is impossible to imagine
and come up with all the permutations and combinations that may arise from a general
principle. When you apply a principle to separate cases, something different would
come out of the principle in each scenario, and this would subsequently impact the
development of international law. Following 1970, the broad and residual rule on
nationality in the BT case might be easy to “disapply”. Countries could say that they are
not bound by the ‘incorporation plus’ rule by stating that there is no rule of precedence.
The Court could also agree with the same. However, it is not possible to reverse this
rule. It cannot be said that the rule laid down in the Barcelona Traction case was
incorrect and that a different rule will be applied. An obvious way to reverse such a rule
would be through a multilateral treaty (which was done with respect to the Lotus
holding on jurisdiction). “Yet the prospects of such an eventuality are rather slim when
the issue is as politically sensitive and divisive as the diplomatic protection of
corporations. By the same token, it is difficult to imagine that the Court’s dictum should
be reversed by a body of international practice consistent enough to give rise to the
emergence of new rule of custom – especially if diverging approaches can be explained
as leges speciales. In short, Barcelona Traction suggests that residual, default rules that
admit of exceptions are rather likely to make a lasting impact on the law.”
4. Fourth lesson is that judicial pronouncements will shape the law if they take up societal
demands. Prof V feels that this is a tall claim and while it may be common sense, it
needs to be backed by evidence. There was a gap of law on a politically sensitive issue
in the 1960s, and the Barcelona Traction case enunciated a general rule and indirectly
encouraged states to formulate special rules for special circumstances (since the States
could ‘contract out’ of the rule by the way of treaty. This, in a certain sense, comes in
conflict with the previous rule. When a treaty says that a non ‘incorporation plus’ rule
applies, it doesn't mean that it is leges specialis. The Barcelona Traction case covered
up an area of non liquet in the field of international law, and “it succeeded in bringing at
least a measure of legal certainty to a hitherto rather under regulated area of

least a measure of legal certainty to a hitherto rather under regulated area of
international law.” Contrary to the allegations that the first limb of the Barcelona
Traction case (Diplomatic Protection) led to uncertainty and that it is too vague to
actually lay down a principle, it is argued by Tams that the judgment contributed
towards making the law more certain. He argues that any contribution to an area
without any law would fill that gap to an extent. “The Court’s ‘other’ Barcelona
Traction dictum, the pronouncement on obligations erga omnes, fulfilled a very
different function, but it, too, responded to a societal demand. The Court’s dictum
launched a concept that accommodated a generally felt interest in some form of
enforcement action in defence of community interests.” There was a demand for the use
of erga omnes for enforcement. There was already a rule of usage of erga omnes in the
context of locus standi, and there was no gap there. However, there was no law on the
point of enforcement, and the dictum filled that gap and met the demand. After the
disastrous 1966 SW Africa case, “international law was in need of such a concept – one
that sent a political signal, that reopened the door to the notion of community interest,
and that was broad enough (and maybe mysterious enough) to be applied outside its
initial field of application. The Court, having felt the repercussions of South West
Africa, was keenly aware of this societal demand.”
• Reading Twelve : Navia

• Reading Name : Understanding Jus Cogens. Rafael Nieto-Navia, “International Peremptory
Norms (Jus Cogens) and International Humanitarian Law” in Antonio Cassese & Lal Chand
Vohrah, ‘Man's inhumanity to man: essays on international law in honour of Antonio
Cassese’ 595 (2003)
• Jus cogens : These are the inderogable norms and all parties are bound by these and they
cannot be violated under any circumstances.
• History of Theory
1. In ancient Greece, there were stoics who talked about how there will be a situation
where all the States will be following the same rules and universal reason. In the more
medieval times, Grotius, the father of international law, and other thinkers as well,
talked about jus cogens as a principle which amounted to necessary natural law (jus
naturale necessarium) i.e. that which cannot be amended. It was independent of any
institution, either normal or divine. More philosophers agreed that there existed an
international community to whom the States should submit to, for the greater welfare.
2. Why were all these people talking about a universal reason and common good? This is
so because a law which cannot be violated by anybody is being talked about.
3. Any law which has so much power over any actor, needed to be justified and
legitimised so powerfully so that it would have a great impact on the actors. They
distinguished between jus naturale necessarium and voluntary law. The former cannot
be violated, but the latter can and be justified after the violation.
4. Boden has supported the theory of absolute sovereignty viz, absolute power over its
citizens. However, even Boden acknowledged that this power cannot be arbitrary, and
talked about how it was overridden by the law of God. Natural law occupied a seat
above the law of God as well.
• Pre Vienna Conference

1. Jus cogens was accepted as a proper theory in the middle of the 20th century (informal
acknowledgment).
2. Oppenheim talked about there existing a set of universal international rules, the
violation of which can render a treaty void.
3. Jus cogens, by 1905, had evolved to be a very strong customary international law. It

3. Jus cogens, by 1905, had evolved to be a very strong customary international law. It
became a distinct concept altogether after the first world war (reflected in Art. 20(1) of
the covenant of League of Nations).
4. In 1934, Judge Schüking interpreted this article to say that the covenant of League of
Nations as a whole and more particularly Article 20, would possess little value, if the
treaties in violation were not to be treated as automatically null and void i.e. void ab
initio.
5. In the ICJ debates as well, it was said that the jus cogens are a special set of norms, and
derive their legitimacy from the idea of morality, and the will of the parties. It is a good
blend of natural and positivist law.
• Vienna Conference
1. This was a discussion to come up with a law of treaties.
2. Four special rapporteurs were appointed to research on the question of jus cogens.
3. Important to note that in the statute of ICJ, jus cogens does not exist as a separate
source of international law.
4. It is elaborately discussed, though, in the Vienna Convention. Two of these rapporteurs

were important scholars (Brierly & Lauterpacht), were supporters of acceptance of
peremptory norms even before their appointment.
a. Lauterpacht had even gone so far as to endorse the creation of an international
organ responsible for deciding on the morality of the object of treaties.
Accordingly in his report in 1953 he included a draft article which permitted the
ICJ to declare a treaty void if its accomplishment could be considered illegal
under international law.
b. Other two rapporteurs were Fitzmaurice and Waldock.
c. The final report was submitted by Waldock, and the report rejected jus cogens on
the basis of it being unsustainable. He recommended that there are already
inderogable international laws, so there is no need to make a separate concept as
such.
d. There was a criticism of jus cogens, as there was no simple way to identify jus
cogens principle (What is the threshold?).
e. Waldock talked about how the subject matter and content of the jus cogens norms
should be looked at, and not the norms. Further, there was an observation that
state practice and jurisprudence of international law was to be seen in order to
work out the content and the making of the jus cogens principles. These principles
could be modified by general principles. It gives you the scope for replacement of
these principles with only another jus cogens principle. It should not be arbitrarily
used and should rely on peaceful settlement of disputes, and it must not be used
too frequently. It should also not have any retrospective effect.
f. Thus, making a treaty void ab initio would not be appropriate, if it were to violate
these norms (as per report). This final report was submitted to the ILC and it was
passed in a resounding fashion (87-8, 12 abstentions). This is reflected in Article
53 of the Vienna Convention of law of treaties.
• Post Vienna Conference

1. How was the article used? Hubert highlighted difficulties in codifying the concept, and
had stated that this article was too imprecise in its scope, formation and effect. He said
that the imprecision will lead to disputes and it has come to be true since there is no
standard of determining what norms are jus cogens.
2. He also criticised that whatever comes out of the will of nations becomes a source of
international law, and in this regard, he said that it was an unruly and irresponsible
source.
• How to identify jus cogens?

1. Norm of general international law: Some have argued that these norms are a part of Art.
38(1)(c).

2. Schwezen Berger explored the possibility of there emerging jus cogens principle from a
treaty signed between two or more States. He said that it is possible. He talked about
how if there were an overriding article in the treaty, it could be jus cogens. However,
this would not be jus cogens in its true sense, since it would not have any overriding
effect prohibiting in its true sense. Since it is a norm of general international law, there
must be a general consensus amongst almost all nations.
3. “Accepted and recognized by the international community of States as a whole”: The

chairman of the drafting committee of Vienna conference, Mr. Yasseen talked about
how there was a possibility of someone vetoing a decision to avoid responsibility from
a norm which is peremptory. He said that the words “as a whole” were added to draft
Article 50 by the ILC to try to avoid a situation whereby one State could effectively
veto a decision to designate a norm as peremptory. There is a universal consensus that
is required. How to determine universal consensus is also a problem. However, if the
Court believes that if a universal consensus has been achieved, in such a scenario, there
is no scope for a country to exclude themselves from the norm, which is unlike the case
in customary international law where you can carve yourself out as an exception if you
are a constant objector.
4. Jus cogens norms can also arise out of very strong customary international laws and
general principles, which have evolved through a rigorous process of consensus, and
can be applicable on the States. One can state generally that norms of jus cogens can be
drawn from the following identified sources of international law - General treaties
(where object and purpose of treaty render them more important), international custom
& general principles.
5. No derogation, can be modified by subsequent norm: There is no scope for derogation

at all. Such norms might be classified into different headings - one indicator is whether
the norm has a fundamental bearing on the international community at large, e.g., good
faith. Another indicator would be - those norms which are necessary for stability of
international juridical order, e.g., pacta sunt servanda, since it is impossible to imagine
the Westphalian system without it and would thereby destabilize the order if it were to
be done away with. Another indicator would be - Norms which have humanitarian and
human rights purposes. Another - Norms of general interest to public order for
administering justice, e.g., principles of the United Nations. Also - Norms binding
nations, even those which have not consented or contributed to the making of it, e.g.,
Law on High Seas - freedom of high seas. Indicators where jus cogens norms can be
identified, as there are no rules to identify these norms.
6. All jus cogens principles are always erga omnes norms, and not the other way round:
Erga Omnes obligations are those obligations which can be valid against the whole
world. For e.g, acting decently (a very simplistic example). Consent is irrelevant and
States are obliged to follow those obligations. All jus cogens norms against the whole
world. This is since it usually involves questions of international law and all States have
an interest in the same. Brownlie says that such rules are opposable to the whole world
and legal persons irrespective of whether they have consented or not. (All these were
only indicators, and not rules, of identifying jus cogens norms.)
• Examples which can help in better understanding
1. ILC decided to not include specific examples. This was so because it would create
confusion with respect to the cases that were not there in the list. However, the ILC did
give some illustrative examples, but did not provide some exhaustive list. For e.g, the
principle against use of force, acts of slavery or genocide. The point of identification of
jus cogens would be clearer if we looked at Art. 64 of the VCLT. It talks about things
which oppose jus cogens will be rendered void, however, this shall not have any
retroactive effect. It shall not be void ab initio, unlike treaties which come in conflict

retroactive effect. It shall not be void ab initio, unlike treaties which come in conflict
after the establishment of jus cogens. A subsequent jus cogens emerges out of a treaty,
or a CIL, etc. Ex injuria non oritur jus - Continuation of violative acts will not cause the
jus cogens norm to be modified. An absolute consensus would be required to do away
with a previous jus cogens principle and replace it, and the same has never happened
before.
• What happens if a treaty is formed and is found to have been in violation of jus cogens?
Vienna Convention contains the general provisions pertaining to the termination of a treaty in
the form of Art. 70. The treaty would be held void ab initio if the treaty were to be found to
violate the peremptory norms. There is an obligation upon the States to bring their actions in
conformity to the jus cogens principles.
• If a treaty is violative, the States will have to rectify their violations and undo the past where
the peremptory norms have been violated, and must make sure that their future relations
remain consistent with these norms. If a treaty is existing, and a jus cogens principle arises,
the Parties shall be made free of their previous obligations. The principle will not have an
effect on their past actions which were undertaken before the formulation of the norm, and
shall only have an effect upon and following the date on which it was formulated. However,
if there is a continuing obligation which comes in conflict with the principles, then it must be
rectified. The treaty would not be void ab initio, but would only be void. All those actions
which still have some effect, and go against the jus cogens principles, cannot be maintained
and must be rectified.
• Not all erga omnes norms are jus cogens norms. Erga Omnes is used in different procedural
aspects and is used very often by judges and scholars in many ways (was used in the
Barcelona Traction case). It entails that there are some rules where you have an obligation
towards the world at large (example: not to be obnoxious towards the whole world). If an
erga omnes norms were to be violated, the rule of standing would become relevant, and a
claim may be filed in the ICJ even if they were not an affected party. There have been
allegations that erga omnes has been overused as well.
• It took twelve years to decide the Barcelona Traction case (1970) and is one of the most
controversial cases. In the middle of the case, there was an anti climatic situation wherein the
ICJ said that the case was not admissible and that they were not the right forum for the case,
thereby adding to the controversy. However, they did admit their jurisdiction later on. It was
a case involving Belgium and certain corporations where the shareholders were Belgian.
Corporations are legal persons, and any legal person would have a nationality. The company
had been instituted in Canada, but the shareholders were primarily Belgian. They wanted to
bring a suit to the ICJ due to a contractual violation. As an obiter dictum, the court said that
for the purpose of erga omnes norms, the institution of corporation is irrelevant, but where
the dispute has arisen is relevant. Many authors believe that the handling of this case was
very poor and disappointing, but still had a lot of influence on development of international
law in areas of diplomatic protection given to corporations by international law, and on the
point of erga omnes norms as well. Case is seen as an example where the Court is seen as an
agent of international change and legal development of international law. It is important to
note that judges cannot make judicial laws in theory, but in reality, the judges did make some
laws via interpretation. However, a politically correct way of saying is that they were agents
of international change.
• Reading Thirteen : Sinha

• Reading Name : Third World and Binding quality of International Law. S. P Sinha,
“Perspective of the Newly Independent States on the Binding Quality of International Law”
14(1) International and Comparative Law Quarterly 121 (1965)
• New states have emerged (previous African and Asian colonies), although they acknowledge

• New states have emerged (previous African and Asian colonies), although they acknowledge
the existence and importance of international law they have been consistently expressing their
displeasure about the contents of traditional IL, challenge the extent of its universality
• They believe that IL does not does not look at their interests and views of the new world
order, IL needs to evolve to reflect the consensus of the entire world community (connect to
eurocentrism as well as 'consent to consensus' of Falk).
• They hope that " the progressive development of international law would bring about a
greater degree of universality through the contributions and the active participation of the
many new nations which had emerged on the international scene.
• NIS - Newly independent states
• Custom
1. Customs are an important source of IL, these norms were formed at a time when it was
enough to show that the general consensus of opinion within the limits of European
civilization is in favour of the rule (views/consent of the then colonies were not taken
into consideration and of their colonial masters consented to the rule that means the
colonies have consented to the rule).
2. Hence many previous colonies do not lend their unconditional acceptance to customary
IL as a while.
3. These new States cannot be expected to accept the thesis that practice of a norm by a
group of States may create rules of international law binding upon all States
4. Ex- their attitude towards the three mile limit of territorial sea in the UN conference
• Treaties
1. New states favour treaties more than customs (provides opportunity to participate in the
making of rules, not bound to rules unless they want to)
2. Treaties helps develop new norms and power arrangements
3. They would accept only those treaties which are based on universally accepted values,
including their own, or those which provide an effective basis of reciprocity, not likely
to accept treaties concluded by the Great Powers on behalf of the international
community
4. These states strongly believe that unequal or in equable treaties imposed on them are
void ab initio, hence states that were obligated to enter into such treaty can denounce
and terminate them.
5. Clausula rebus sic stantibus (Latin for "things thus standing"), in public international
law, is the legal doctrine allowing for a treaty to become inapplicable because of a
fundamental change of circumstances. The doctrine is essentially an "escape clause" to
the general rule of pacta sunt servanda (promises must be kept). This doctrine is
frequently used by these counties to terminate treaties (basis of justice, inherent burden,
change in power position in the world)
• General Principles of Law

1. NIS look at them as a an avenue/opportunity to for their legal, value system to make a
contribution to the development of IL
2. These principles are based on common legal consciousness and deriving them would
necessitate consideration of legal systems of all civilized nations hence NIS hope to
play a create role, participate in this. Ex- participation in the form if judges in
international courts or commissions
• Territory
1. NIS place a lot of importance (utmost importance) on territory, Territory = shield of
sovereignty
2. Hence reluctant to accept territorial incumbrances imposed on them in the colonial era
3. Ex- India objects to any right to passage that Portugal claims

• Colonial Titles
1. NIS refuse to accept any colonial titles like the one that permitted the right of
acquisition of non- Christian territory by discovery and occupation ( hence they are
against the theory of territorium nullius )
2. NIS want to look at history, geography and local opinion instead of traditional IL, used
to justify the liberation of colonial pockets in India
3. They do not regard the question of who has the right to decide when a territory has
ceased to be non-self-governing as a matter of domestic jurisdiction of administering
powers within the meaning of Article 2, paragraph 7, of the United Nations Charter.
• Self Determination
1. For NIS, this is an instrument of political pressure for the emancipation of colonies
2. The principle that "all peoples have the right to self-determination " has been affirmed
in the Declaration on the Granting of Independence to Colonial Countries and Peoples.
3. But even NIS do not believe that discontent groups in a state have a right to self
determination (ex- Nagas in India, Kurds in Middle East, Kashmir)
• Recognition
1. NIS have a liberal attitude towards state and govt
2. States that are newly emancipated from colonial rule, want recognition usually get it
from states that had a similar background, history
3. NIS have an unconventional attitude towards insurgency groups in a liberation war,
they accord recognition to such groups (before they even win the war), material aid. Ex-
Indonesia, Provisional Government of the Algerian Republic, and is evident in the
formation of a Provisional Government by the Angola Liberation Front.
• State Succession
1. NIS want a clean slate without colonial burdens hence want to acknowledge economic
obligations only on the basis and to the extent of actual enrichment, question property
rights of foreigners about estates acquired during the colonial rule
2. Many newly independent States have voluntarily agreed to include" devolution clauses
" in agreements with their former metropolitan Powers, which provide for the taking
over by the new States of rights and duties applicable to them as dependent territories
under treaties made by their predecessors but there are exceptions some have stated that
obligations cannot apply to alleged rights acquired before the accession to full national
sovereignty of formerly colonized countries
• Sovereignty
1. NIS give a lot of importance to this as it makes them the master of their own house and
provides a legal shield against foreign invasion
• State Responsibility
1. Reaches down to the foundation of IL (changes the geographical and economic
foundations)
2. NIS consider that " the doctrine of responsibility of States was merely the legal garb
that served to cloak and protect the imperialistic interests of the international oligarchy
during the nineteenth century and the first part of the twentieth
3. NIL do not accept traditional IL rules, esp. about state responsibility as they believe that
rules on state responsibility have not been evolved to suit modern welfare states
4. NIS are engaged in social, economic reconstruction (colonial masters messed their
economies), this involves liquidation of economic positions of colonial powers (as they
have been acquired on the basis of inequality, privilege and exploitation), hence they do
not want foreign incursions into their affairs.
5. Basically NIS are trying to build their economy and hence don't want them (colonizers)
to intrude more.
6. NIS don’t aim to run away from all obligations, all the obligations undertook by them
after independence have been honoured

after independence have been honoured
• Expropriation of foreign property

1. Moved by the desire to cut inherited burdens, to free themselves from foreign control of
their economies, and to obtain capital needed for their programs of economic
reconstruction, the newly independent States have resorted to expropriation of foreign
interests. In their opinion, the validity of such expropriation is not a matter to be
decided under international law.
2. Problem is more of equity than law
• Territorial Sea
1. As I said earlier Nis have been against the three mile policy on territorial seas (also acts
as protection from military and eco incursions from other states).
2. They claim a larger share of the sea, more fishing (protect, use marine resources for
their own state)and continental shelf rights ,
3. For example, Indonesia and the Philippines claim all of the waters between the islands
that constitute the territory of these States
• Calm/Pacific Settlement of Disputes

1. NIS prefer methods of negotiation, inquiry, mediation and conciliation rather than
adjudication by application of legal rules, prefer non-binding methods
2. EX role of IBRD to settle the Indus water dispute between India and Pak
3. Ex- Un achieving cease fire between India and Pak
• War and Neutrality

1. Guided by the principles of positive neutralism and peaceful co-existence, the newly
independent States have avoided resort to hostile measures
2. In case of limited military engagements of colonial war, these States attempt to bring a
quick termination in favour of the colonial territory.
3. In case of limited military engagements between the big Power blocs, these States
attempt to conciliate the two blocs to terminate hostilities. An example of this attitude is
found in India's role in the Korean conflict.
• Nuclear Tests
1. Nis object to carrying out nuclear tests at the risk of other people
2. If they really want to conduct the nuclear test do it at your own doorstep and not on
those of other nations
• Conclusion
1. Nis want economic and social growth which is difficult to achieve in the present world
order
2. they desire an international legal order based on law and are interested in the growth of
an international law which would reflect their needs, provide for their aspirations, and
assure equitable justice , promote their interests hence find IL rules lacking, needs to
evolve
3. Do not reject all the rules, but they do not accept rules that counter their interest as and
which nurture perpetuation of their inherited burdens of unequal obligations.
• Reading Fourteen : Chimni

• Reading Name : Summing up TWAIL. B. S Chimni, “Third World Approaches to
International Law – A Manifesto” 8 International Community Law Review 3 (2006).
• Main argument: Economic and political freedom of third world is being undermined, by
policies and laws dictated by the first world and the international institutions they control.
Third World Approaches to International Law (TWAIL) has not been able to critique neo-
liberal international law or provide an alternative to it. Lack of third world scholars, difficulty
of doing research in poor countries, etc. has held back TWAIL.

of doing research in poor countries, etc. has held back TWAIL.
• Argument against 'third world' being an inappropriate term: general argument is that third
world consists of a very diverse group of countries and cannot be banded together like this.
Argument against this is that the number or the culture is not what makes this category but
the continued marginalization and the common history of subjection to colonialism is what
makes the third world.
• New industrial countries are used to refute this categorization but it is widely accepted that
multiplying categories to cover every aspect is not ideal.
• (Worsley and Crow) Critique of third world, the theory of misinterpreting and undermining
the unity of the third world is a strategy of oppression. Divide and rule. Dominant states take
direct action to weaken third world coalition. Attack to break the Bandung spirit.
• States and IL in the era of globalization: Globalization is not automatic, comes with actions
of states. Especially dominant states.
• Some major overlapping developments that are redefining and reconstituting the relationship
of State, IL, and institutions. With differential impact on third world states and people:-
1. Internal structure of states coming into scrutiny. IL requires state to hold regular
elections. It ignores the facts that formal democracy takes away decision making power
from a lot of marginalized groups. This is done so that the transnational capital can
flourish, the third world countries are forced to voluntarily agree to such norms
2. IL is regulating property rights

a. international specification and regulation of intellectual property rights
b. Privatization of state owned property through the medium of international
financial institutions and international monetary law
c. the adoption of a network of international laws that lift constraints on the mobility
and operation of the transnational corporate sector
d. the definition of sustainable development in a manner which implies the
redistribution of property rights between the first and the third worlds, and also,
subject to some conditions, the regulation of process and production methods
e. the metamorphosis of the area of common heritage of humankind (be it the
domain of knowledge, environment or specific geographical spaces such as the
seabed) into a system of corporate property rights
3. IL defines the conditions by which the international exchange is to take place. It's true
that markets cannot function without rules and norms. But
a. Many such rules made by IL are put in place to protect the first world corporate.
b. Facilitates the first world to construct non-tariff barriers against commodities
exported from the third world.
c. Rules of anti-dumping are framed to protect the first world.
d. On the other hand, some forms of market intervention are frowned upon.
e. Thus, international commodity agreements which seek to stabilise the incomes of
third world countries from primary commodity exports are actively discouraged.
4. IL requires 'deterritorialization of currencies'. National currency is looked down upon

even though the benefits of it are numerous. It facilitates macroeconomic performance
of the economy and provides a way to insulate the state from foreign influence or
constraints. The first world is today using international financial institutions, and the
ongoing negotiations relating to the General Agreement on Trade in Services (GATS),
to compel third world States to accept monetary arrangements, such as capital account
convertibility, which are not necessarily in their interests. East Asian crisis has shown
that loss of monetary sovereignty pulls down the standard of living in the third world
countries.

countries.
5. The fact that the omnipresence of the discourse of human rights in international law has
coincided with increasing pressure on third world States to implement neo-liberal
policies is no accident; the right to private property, and all that goes along with it, is
central to the discourse of human rights.
a. While the language of human rights can be effectively deployed to denounce and
struggle against the predator and the national security state, its promise of
emancipation is constrained by the very factor that facilitates its pervasive
presence viz., the internationalisation of property rights.
b. This contradiction is in turn the ground on which intrusive intervention into third
world sovereign spaces is justified. For the implementation of neo-liberal policies
is at least one significant cause of growing internal conflicts in the third world
6. Labour market deregulation (prescribed by international institutions) is detrimental to

the living conditions of the third world labour. Deregulation is integral to structural
adjustment, based on the belief that excessive governmental intervention is an
impediment to this adjustment. Competition among 3rd world countries to bring in
foreign investment has only increased this 'race to the bottom'. Bad working conditions
leading to economic and sexual exploitation of women workers (make up 80% of the
labour force). The United Nations Secretary-General himself has pointed to ‘adverse
labour conditions as a major factor contributing to the increased feminization of
poverty'. The position of migrant labour in the first world is not very different from that
of working classes in deregulated labour markets of the third world. There are
increasing restrictions on their rights within European Union and the United States.
7. Jurisdiction is very complex now. Digital capitalism reduces the ability of the third
world to regulate transnational commerce. Where international law does not penetrate
national spaces, powerful states put into effect laws that have an extraterritorial effect;
third world States have little control over processes initiated without its consent in
distant spaces. Legitimate threat of 'tyranny of sameness' and ‘extension transnationally
of the logic of Western governmentality’. The fear is accentuated by the fact that
international laws are being increasingly understood in ways that redefine the concept
of jurisdiction.
8. Proliferation by international organisations. It is not the greater internationalisation of

interpretation and enforcement of rules that is problematic but its differential meaning
for, and impact on, third world States and peoples. The neglect of the views and legal
systems of societies visited by internal conflict in the setting up of ad hoc international
criminal tribunals, even as the United States refuses to ratify the Rome Statute, is an
instance of such practices. Read WTO DSS example from the paper.
9. State is no longer an exclusive participant in the IL forum, the “paradigmatic case” of

‘global law without the state’ is lex mercatoria, revealing that the transnational
corporate actor is the principal moving force in decentralised law making. Issues: First,
there is the lack of a “public” voice in the emergence of corporate law without a State.
Second, corporations take advantage of their “inner legality” to avoid tax and other
liabilities. Thus, for example, intra-firm transactions are used to avoid paying taxes and
respecting foreign exchange laws of many a third world country. Third, the internal
legal order may be used to, among other things, present a picture of law and human
rights observance when the contrary is true. Such is, for example, the case with
voluntary codes of conducts that are adopted by transnational corporation
10. There is the refusal to affirmatively differentiate between States at different stages of
the development process.
11. The relationship between the State and the United Nations is being reconstituted. Turn
towards the transnational corporate for financial assistance leads to loss of the ideals on

towards the transnational corporate for financial assistance leads to loss of the ideals on
which UN was made.
• Ideology, Force, and International Law: Dominant social forces maintain their dominance by
making others believe that their ideas are the natural. Academic institutions of the North play
a key role in the spread of culture of IL. Students in the third world are given these sources to
read and through this they form opinions. International institutions also play a part in this
propaganda through various methods. Only an oppositional coalition can evolve counter-
discourses which deconstruct and challenge the hegemonic vision. The alternative vision
needs to respond to the individual elements that constitute hegemonic discourse.
• The Idea of Good Governance: IL legitimizes itself through language of blame. North makes
it seem like the third worlds countries are incapable of governing themselves. This inability is
cited as the reason for unrest and need for humanitarian intervention by North. The
contemporary discourse on humanitarianism not only seeks to retrospectively justify
colonialism but also to legitimize increasing intrusiveness of the present era.
• Human Rights as Panacea: Made to believe that human rights can solve all the third world
problems. (nothing worth making note of, but read the paragraph in the paper)
• Salvation Through Internationalisation of Property Rights: The neo-liberal state is seen as the
only rational state now. In order to understand the on-going process, the State needs to be
understood in two different ways. First, ‘states are clearly institutions of territorial property’
It explains why third world diplomacy has, through various resolutions relating to “natural
resources”, emphasized ‘the function of sovereignty as a demarcation of property rights
within international society’. Destroyed by the forcing of ideology of internationalization of
private property is the way to bring progress in third world country. (sustainable development
is a form of this as well) Second, the State is to be understood ‘as a social form, a form of
social relations’. It allows the debunking of the concept of “national interest” and the insight
that the third world ruling elite is actively collaborating with its first world counterparts in
entrenching the process of privatization and internationalization of property rights in its own
interest. This process is legitimised through the ideological discrediting of all other forms of
State
• The Idea of Non-Development: Development is being used as a tool for colonialism by the
first world. The author wishes to scale down the third world aspirations and developmental
goals.
• The Use of Force: Powerful States, it is being argued, exercise dominance in the international
system through the world of ideas and not through the use of force. But from time to time
force is used both to manifest their overwhelming military superiority and to quell the
possibility of any challenge being mounted to their vision of world order. On such occasions,
dominant States do not appear to be constrained by international law norms, be it with regard
to the use of force or the minimum respect for international humanitarian laws. The US
intervention in Nicaragua and the Gulf War and the NATO intervention in Kosovo are just a
few examples of this truth. Thus, peace in the contemporary world is in many ways the
function of dominance.
• The Story of Resistance and International Law: Dominant ideology needs to be criticised.
Liberal optimism and left wing pessimism to be avoided.
1. The first view believes that the world is progressively moving towards a just world
order. It believes that more law and institutions are steps in this direction, in particular
imaginative ways of securing enforcement of agreed norms and principles.
2. The second view completely rejects this narrative of progress. It only sees ‘the
endlessly repeated play of dominations’. In this view ‘humanity installs each of its
violence in a system of rules and thus proceeds from domination to domination’.
(radical rule scepticism) A key issue from the perspective of a theory of resistance is the
question of agency. More specifically, it is about the role of old social movements

question of agency. More specifically, it is about the role of old social movements
(OSMs) in ushering in a just world order. New Social Movement made their presence
felt first in the North and then expanded to the South. Collapse of socialism led to the
rise of this movement. It looks at OSMs with suspicion. OSM was a class based
struggle (started through French Revolution) NSMs are encouraged by the elites to
prevent the undoing of their neo-liberal policies. Socialism should not be seen as a fixed
ideal or a frozen concept. It should today be perceived as expressing the aspirations of
equality and justice of subaltern peoples. The ideal is to be realised through non-violent
means and should exclude all manner of dogmatic thinking and undemocratic practices.
The ideal of democratic socialism wouldbe actualised by way of reform and not
revolution and would not exclude reliance on market institutions.
• TWAIL needs
1. make the history of struggle an integral part of the history of IL
2. alliance with other critics of neo-liberal policies
3. study and suggest changes in IL regime
• The Road Ahead: Further thoughts on a TWAIL Research Agenda
1. Increasing Transparency and Accountability of International Institutions: The steps leading to

global democracy will not conform to a neat model. Instead, it will be the result of slowly
increasing the transparency and accountability of key actors like States, international
institutions and transnational corporations. There is much work that needs to be done in this
respect
2. Increasing Accountability of Transnational Corporations: There are several steps that can be
taken to make the transnational corporations (TNCs) responsible in international law. The
steps could include: (i) adoption of the draft United Nations code of conduct on TNCs; (ii)
the assertion of consumer sovereignty manifesting itself in the boycott of goods of those
TNCs that do not abide by minimum human rights standards; (iii) monitoring of voluntary
codes of conduct adopted by TNCs in the hope of improving their public image; (iv) the use
of shareholders rights to draw attention to the needs of equity and justice in TNC operations;
(v) the imaginative use of domestic legal systems to expose the oppressive practices of
TNCs; and (vi) critique of bodies like the International Chambers of Commerce for pursuing
the interests of TNCs to the neglect of the concerns of ordinary citizens.
3. Conceptualizing Permanent Sovereignty as Right of Peoples and not States: Research needs
to be directed towards translating the principle of permanent sovereignty over “natural
resources” into a set of legal concepts which embed the interests of third world peoples, as
opposed to its ruling elite. In the past, the Program and Declaration of action for a New
International Economic Order and the Charter of Economic Rights and Duties of States were
statist in their orientation. While it is true that the State is, in terms of international
demarcation of territories, an institution of collective property, the ultimate control over this
property is to vest with people. From this perspective, there is a need to address the difficult
question of how to give legal content to peoples sovereign rights? There is often in this
respect the absence of appropriate legal categories and are difficult to implement in practice.
4. Making Effective Use of Language of Rights: The recent resolutions passed by different
human rights bodies drawing attention to the problematic aspects of international economic
regimes offers the potential to win concessions from the State and the corporate sector. The
implications of these resolutions need to be analysed in depth and brought to bear on the
international and national legal process. A second related task is to expose the hypocrisy of
the first world with respect to the observance of international human rights law and
international humanitarian laws.
5. Injecting Peoples Interests in Non Territorialised Legal Orders: From the standpoint of the
development of international law, the emergence of global law without the State is both
empowering and worrisome. The trend needs to be analysed from a peoples perspective. The

empowering and worrisome. The trend needs to be analysed from a peoples perspective. The
process is empowering in as much as it can be used by progressive OSMs and NSMs to
project an alternative vision of world order through the production of appropriate
international law texts. Much work needs to be done in this direction. At the same time, there
is a need to explore ‘the tension between the geocentric legality of the nation-state and the
new egocentric legality of private international economic agents’ in order to ensure that the
interest of third world peoples are not sacrificed.
6. Protect Monetary Sovereignty Through International Law: A great deal of research needs to
be directed towards finding ways and means to protecting the monetary sovereignty of third
world countries. Third world States are presently doing so inter alia through the creation of
capital controls (e.g., Malaysia after 1997), tax on financial transactions (Chile), prescription
of a fixed period of stay before departure, a regional monetary fund etc. But there is a need
for a new financial architecture that more readily responds to the anxieties of third world
States and peoples. This calls for the informed intervention of international law. But the role
of the international financial market and institutions in eroding the monetary sovereignty of
third world countries is little understood even today. Indeed, few areas cry out for more
attention than international monetary and financial law. This situation needs to be
immediately corrected.
7. Ensuring Sustainable Development With Equity: There is an urgent need to shape an

integrated response to global environmental problems. In this context, ‘the whole question of
constructing an alternative mode of production, exchange, and consumption that is risk
reducing and environmentally as well as socially just and sensitive can be posed’. From an
international law perspective, the empty concept of sustainable development needs to be
filled with legal content that does not stymie the development of the third world countries.
8. Promoting the Mobility of Human Bodies: While capital and services have become
increasingly mobile in the era of globalization, labour has been spatially confined. More
significantly, in the realm of forced (as opposed to voluntary) migration the first world has,
through a series of legal and administrative measures, undermined the institution of asylum
established after the second world war. The post Cold War era has seen a whole host of
restrictive practices which prevent refugees fleeing the underdeveloped world from arriving
in the North. A sustained critique of these practices is called for. It will, among other things,
prevent the first world from occupying the moral high ground.
Personal Stuff
EIC in India (and consequently the British Raj) was example of a MNC, making substanital I
law changes

Summaries
01 October 2020 13:26
• Following are the summaries of all the readings
• Falk
1. ICJ statue alone does not have domain over sources of law. Often times, non-binding
resolutions of General assembly also have the power of setting norms. In that way,
perhaps, General Assembly could be accorded a quasi-legislative status in the
international legal system
• Maisley
1. The civil society (and consequently individual human beings) should be able to
participate in decision making process in I law. But this is a mere aspiration, not legally
required. Author argues how civil society groups are already participating in I law
making. Author proves the same through Article 25(a) of ICCPR(right to take part in
conduct of public affairs directly or through representatives), read with VCLT to mean
that
a. States have an obligation to establish accreditation procedures for civil society at
every instance of I law making; they should allow for popular involvement. At the
same time, civil society has obligation to ask for solid justification when such
right of involvement is denied
b. It mandates all actors to respect and ensure certain minimum conditions that are
essential for deliberation; includes stuff like providing egalitarian funding, giving
infrastructural access
c. Lastly, when admitted as participants, civil society should be given a meaningful
voice; not just a token of participation. They should not just be allowed to speak
but their inputs should be duly taken into account
• Janis
1. Positivism is largely used today to comprehend and study I law. But this positivist
theory has certain bad implications for individuals as subjects of international law.
Hence, other theoretical foundations (of primarily 17-18th century) is better to locate
individuals in international law
• Kate
1. Author first states the traditional position of individual in I law. Then lists the
motivations or factors that caused a structural change in I law that moved the status of
individuals. The doctrine of engagement is talked about to gauge the status of
individuals as subjects under I law and finally, the newer changes (moving from state
centrism to individualism) are traced
• Trindade
1. A more holistic placement and historic analysis of individual as subject of international
law is done. Rest is almost same as Kate
• Thurer
1. Talks about what modern statehood means and how its roles are changing in backdrop
of emergence of NGOs and TNCs. Finally asks whether in all this, does international
legal order needs to be changed to better accommodate these new changes - answer is
yes
• Chimni
1. Presents a critique from lenses of third word to the globalizing of international law(and
its disadvantage, particularly to the third world; it being guided by oppressive
ideologies of the west) and proposes a set of strategies to create a world order based on
social justice.
• Sinha
1. Talks about newly independent states and how they have become part of interntional
family based on juridical equality. They desire an equitable international order to grow
economically and socially. In lieu of this, they accept rules that recognise and foster

economically and socially. In lieu of this, they accept rules that recognise and foster
their interests while rejecting the ones that are against them. They do not reject every
European rule but renounce those that perpetuate toxic and unequal obligations/burdens
• RP Anand
1. Almost similar to Chimni and Sinha
• Nieto-Navia
1. Evaluates Jus Cogens, what are the sources of international law from where jus cogens
are drawn (dicey to find nice objective norms per se) particularly pre, during and post
Vienna conference. Then talks about how jus cogens norms have affected interntional
law and other norms and what happens when a treaty falls foul of jus cogens
• Tams
1. Traction case analysed. It is used to trace the court's role as an influential agent of legal
development. In that backdrop, the article states that there are different factors that help
explain the circumstances under which judicial pronouncements can shape law

TEST IV
25 October 2020 10:34
• IL Divisions
• Chetail - 45
• IO Subject hood - 46
• Recognition of government - 47.1, 47.2
• Statehood Crawford - 48a, b
• Recognition - 49
• Jurisdiction - 50, 51,
• State Responsibility - 52, 54
• Responsibility - 53
• Below are the class notes - only the points that were raised ultra vires of the readings. Sadly,
not much. Makes me think, we have teachers or readers, who read readings for us :)
• International Organizations’ subject hood

1. A small excerpt from the book entitled ‘Landmark cases in Public International Law’
shall be discussed.
2. We will be focusing on a single case - United Nations
• Is UN a proper actor of international law?

1. This question was decided upon in the April of 1949, in the reparations for injuries
suffered in service of the United Nation case.
2. This case arose following the establishment of the State of Israel, in the previous British
mandate of Palestine. Israel was gifted to the Jews by the British since the belief was
that it was their ‘promised land’.
3. On 17th September 1948, Count Folke Bernadotte, the United Nations Mediator in
Palestine, was assassinated by an Israeli paramilitary group called Lehi. Col. Andre
Seroth, a UN observer from France, was also assassinated.
4. The question that arose was whether the UN was liable to pay indemnity to the heirs of
the deceased. The UN did do so.
5. whether or not the State responsible for the damage was liable to the UN and the
victim?
a. One source of doubt about whether the UN could claim reparation was that at that
time, there was no consensus whether international organizations had legal
personalities
b. This was a purely legal question that had not been settled. In several years of its
functioning, it was not made clear whether the League of Nations was an
international legal personality
c. If we look at the UN Charter, there is a provision for the domestic legal
personality of the UN, but not for the international legal personality (Article 104)
d. The question that has arisen in the case had not been envisaged in the discussions
leading to the Charter.
e. An opinion was sought by the Secretary General, who said that there was no doubt
that the UN was a legal person and had a claim.
f. The Court resolved the doubt based on the opinion of the Secretary General,
whilst affirming it, and also provided the closest thing to an authoritative
definition of the concept of legal personality. This also helps us in realizing the
status of IOs in general
i. However, many scholars have not been satisfied by this observation (can be

i. However, many scholars have not been satisfied by this observation (can be
seen via discussions in previous classes, it is not a focal point of discussion
in today’s class)
g. Nevertheless, some clarity was brought about by this decision. While clarifying,
the Court gave an authoritative definition of subject hood
h. The Court said, while describing the UN as an international person, that it is not
the same thing as saying that it is a State or that its rights and duties are same as
that of a State, which is certainly not the case. It is not a super-state either. All
rights and duties of the UN does not necessarily need to be on the international
plane, as can be evinced from Article 104. Thus, some are on the domestic level,
while others are at the international level.
i. What this means is that the UN is a subject of international law, and capable
of possessing international rights and duties, and that it has a capacity to
maintain its rights by bringing claims to the courts.
ii. This was the standard that had been set for any other international subject as
well, and is known as the ‘variegated approach’.
iii. The Court did, however, provide clarity and whenever scholars have picked
up the question of subject hood of MNCs or NGOs, they have invariably
applied this approach taken by the Court. Capacity, as used by the Court,
meant to resort to the customary methods established by international law
for the establishment(1), presentation(2) and settlement(3) of claims. There
were, thus, 3 aspects of capacity.
iv. Among them, the capacity to protest, request for an inquiry, negotiation, also
comes under the meaning of capacity. Thus, capacity has a broad definition.
• There is another case, which is the certain expenses of the United Nation case, and was
decided in 1962
1. This case is the living proof that what was established in the Reparations case was not
the final word, and that it depends on a case to case basis
2. Scholars like Pierre observe that the Reparation for injuries case has become a standard
reference in textbooks for discussing legal personality capacity and their competence in
international law
3. However, the focus of the opinion on the United Nations, complicates its application to
other international organizations
4. The Court talked about the members providing the UN with legal personality, but this
causes debate in areas where there is more limited membership in the IOs.
5. The fact that legal personality needs to be determined on a case to case basis has been
useful, but has also led to confusion since the objective standard set in the UN case
cannot be used elsewhere
6. The ILC has remarked that while the Court has not set prerequisites, its dicta on legal
personality of IOs do not appear to have identified any particular stringent
requirements.
7. On the basis of this, we can say that since there are not any stringent requirements, we
can have our own analysis whether other IOs with limited membership can be
considered to be legal persons.
• Recognition of government
1. There are criteria for recognition of state, but what about recognition of changing
governments? What if new govts change a policy of a previous govt? Can a government
make any action of previous government redundant by not taking responsibility of the
same?
2. How do you recognize a new govt? very different from statehood. Capacity to enter into
relations with other states – is a criterion for recognition for states (monte video
convention) and not the govts. There are various characteristics associated to capacity –
or to be eligible for subject hood.
3. Recognition of govts have two parts

3. Recognition of govts have two parts
a. de facto and
b. de jure recognition.
• What is recognition?
1. Recognition constitutes the acceptance of a particular situation by the recognizing states
both in terms of relevant factual criteria and in terms of consequential legal
repercussions.
2. When the state recognizes the acts of other states de facto – you are entering the
recognition of govts.
3. When other states de jure acknowledges the act of a particular govt – it automatically
means that other states recognize that govt and that govt has satisfied all the legitimate
criteria for recognition of the govt in international community. So here, the governing
state will deal with other govts just like a normal govt-govt relation; will act as the
governing authority of the state, will accept all the legal consequences and
responsibilities of being a govt
4. Recognition of govt is a factual question – done by other states with the relation.
• Crawford
1. Crawford says that there has not been any generally accepted and satisfactory definition
of statehood- we have had a long period of emphasis on recognition of States, which is
the idea that pertains to whether other States recognize you as a State or not.
2. The classical idea of Statehood comes from Article 1 of the Montevideo Convention on
Rights and Duties of State, 1993 - This was a regional treaty/conference and it had the
USA and certain Latin American countries (only the Western hemisphere)
• Acc. To Montevideo (the only hard law on the idea of Statehood), these are basic elements of
a State
1. Defined Territory
a. There is no rule which requires contiguity as well (One State can be in different
places, e.g, Alaska is way away from the USA). In fact, bits of States can be
enclaved within another (When you have a part of State X, which is covered by
State Y on all sides, e.g, when Goa and Dadar and Nagar Haveli were part of
Portuguese territories, they were enclaved within the Indian territory)
b. R Berubiri is a case on territories. However, when there is too much
fragmentation, the requirement of Statehood is difficult to maintain.
i. These are the different territories in South Africa that were trying to break
away from the Apartheid regime. The territory that Boputhswana was
fragmented all over the place, same can be said for KwaZulu. These two
territories were never able to establish their Statehood in international law
partly because they were way too fragmented to be “taken seriously”. There
were other problems too, such as population and economic dependence on
South Africa. By itself, fragmentation is not determinative, but it does cause
problems.
c. Similarly, the fact that your territory is a disputed territory, does not necessarily
negate Statehood.
i. For instance, certain areas were conferred on Israel via GA resolution
181(II) of 29 November 1947 (Essentially, Israel was created).
ii. These were disputed by other states (Palestine, etc.)
iii. However, this does not negate their Statehood, and as long as they can fulfill
the criterion of Statehood and gain enough international support via
recognition, it would be good enough.
iv. This is not only true when you have the entire territory being questioned, but
also when some part of the territory is being questioned
v. There is a case after the first World War which looks at the Polish territory
which was created then. If you are claiming territory Set A and small subset
A1 is being claimed by another, it does not mean that the Statehood over Set

A1 is being claimed by another, it does not mean that the Statehood over Set
A cannot be established. A modern example is that of Croatia.
2. Permanent Population
a. The Nottebohm case revolved around an individual who was originally German,
but subsequently took up the citizenship of Liechtenstein.
b. Guatemala, where he had been living, took over his territory by saying that he is
an enemy alien since they recognized him as German.
c. This went up to the ICJ.
d. It appears that the grant of nationality is a matter that only States by their
municipal law (or by way of treaty) can perform. When territory of country X
disintegrates/part of it secedes and territory Y is formed, if State Y can decide by
itself whom its nationals are, then
i. Does it result in statelessness of the nationals of the previous state resident
there,
ii. An automatic change in nationality, or
iii. In retention of the previous nationality until provision is otherwise made by
treaty or the law of the new State?
Crawford says that there are a couple of viewpoints on this matter

i. Brownlie suggested that there is no retention, but automatic change instead
and that the “population follows the change of sovereignty in matters of
nationality.
ii. O’Connell, on the other hand, says that as undesirable the idea of
Statelessness may be, there is no obligation upon the successor state to grant
nationality; thus, there is no automatic change as such according to him
(Does this cause statelessness?)
iii. Crawford then provides a reconciliatory view where he says “In the absence
of agreement to the contrary, persons habitually resident in the territory of
the new State automatically acquire the nationality of that State, for all
international purposes, and lose their former nationality, but... this is subject
to a right in the new State to delimit more particularly who it will regard as
its nationals.”
iv. Thus, generally speaking, an individual will experience an automatic change
of nationality to where he is a habitual resident.
v. The Ethiopia-Eritrean conflict is a modern day example of nationality and
statelessness following succession. Eritrea had a referendum and the
Ethipion state said that if you go and vote in the referendum and Eritrea is
created, then you shall be Eritrean citizens. There was succession and
questions of nationality were addressed in this matter
3. Government
a. Relating to Congo dispute, he says that when you are being given independence
by a previously holding State, all you need is a Government (which Congo had in
1960)
b. An effective government is needed when you are seceding from a State, and an
example of this is the Åaland Islands dispute
i. where Finland was an autonomous part of the Russian Empire from 1807
until its declaration of independence after the November revolution.
ii. Its territory was thereafter subject to a series of military actions and
interventions… till after the defeat of Germany and the removal of Russian
troops from Finnish territory by Sweden. Only then was order restored
iii. Thus, the Finnish Republic could only become a sovereign State until a
stable political organization had been created and the public authorities
could assert themselves without the assistance of foreign troops, as per
commission of jurists appointed by the League of Nations.
c. Other situations where you need effective governance - General Assembly/UN is
giving Statehood from previously held territory - Example: The statehood of

giving Statehood from previously held territory - Example: The statehood of
Korea was certified by GA res 195 (III). It recognized that there was the grant of
independence by consent of the previous sovereign to Korea as a whole…. The
establishment in conformity with the various instruments of a freely elected
government justified for a time the claim of the Republic of Korea to be ‘the
government of Korea’ as a whole. But the continuance of an effective regime in
the North led eventually to the acknowledgment of its separate statehood, leading
to the eventual admission of both North and South Korea to the United Nations.
• Recognition of State and government
1. Recognition of state - changed with the coming of positivism, because with the coming
of positivism, and with the growth of the power in Europe- concert of Vienna are now
1815, Treaty of Westphalia of 1648, and with these, this growth of states in Europe in
around that time, they took it upon themselves to decide who else was a state.
2. Issue with constitutive theory of statehood
a. Professor Kelson in the mid 20th century, where he said, would constitutive
theory mean that a state is always relative to another?
b. What he means is only if another recognizes you, are you state?. Without such
recognition, you cannot be yesterday. he said
c. Is this really the sort of thing we need to be sort of working with? So in in those
terms, as you moved into the 20th century, the constitutive theory came under
radar and we move towards what is now called the declaratory theory of
recognition,
d. where it is said that the state is a state because it fulfills the markers of a state,
which are- a permanent population, a defined territory of government or an
effective government and the ability to enter into relations with others.
e. If a territory fulfills those criteria, it is a state. thereafter, others just declare they
are understanding that such and such territory is a state by virtue of recognition.
That comes a difference between declaratory and constitutive theory of
recognition, under one you create a state by constituted by recognition, under the
territory is already a state, you merely declare it to be so as per you.
• Recognition of governments - It will be valid when the government has been changed
through unconstitutional means. Otherwise, just for the fact that India goes from Manmohan
Singh's Congress government to Narendra Modi's BJP government, doesn't mean others
interest in recognizing or not recognizing this government.
• Say when Nawaz Sharif's government in Pakistan was overthrown by Pervaiz Musharraf, an
army general to say, "from today, I will be the Government of Pakistan." Do others want to
recognize that government? So the question of recognition of governments only comes in
when there's a change through unconstitutional ways.
• Tobar doctrine
1. United States of America was trying to shore up its position in those states shore up its
financial interests and others political interests in in those states.
2. So it sort of bought into the tobar and panama
3. Because in Panama, you have the Panama Canal. With the Panama Canal, you can
connect the eastern part of United States, the western part of United States through sea,
which is really important
4. So the Americans couldn't afford Panama's government being overthrown aand a new
government coming in and changing policy. What the Americans did was they said, we
will not recognize any new government, unless the people of the state accept the
government
5. And obviously, that allows them time to meddle into the internal affairs of the country
support the government, which has been overthrown, try and get them back through a
counter coup, and so on and so forth. So you had the tobar doctrine. This doctrine has

counter coup, and so on and so forth. So you had the tobar doctrine. This doctrine has
no practical relevance today.
• luthar sagor case : It comes from the United Kingdom, this is a case in relation to certain
property being nationalized in Soviet Russia in 1919.

Chetail//Mnc
25 October 2020 10:35
• The Legal Personality of Multinational Corporations, state responsibility and due diligence :
the way forward by Vincent Chetail
• Alternatively - The Variegated Approach and MNCs as subjects of International law
• Through this paper, Chetail is suggesting the in trying to make MNCs subjects of
international law, due diligence obligations should be put on their home states.
• What was variegated (something that has different patches of colour) - throwback to Kate's
paper
1. International Legal personality as the measure of engagement
a. In post 1945 international legal system it has been accepted that, to the extent that
entities other than states 'directly possess' rights, powers and duties in
international law they may be regarded as subjects of international law
a. This development can be traced to the Reparation cases

i. The ICJ introduced a variegated approach to the subject categorisation,
holding that the extent of a subject's rights, duties and capacities in the
international legal system 'depends on the needs of the [international]
community.
2. Individual being qualitatively different from states as subject of I law

a. The subjects of international law are not identical
b. States possess the full range of rights, duties and attendant capacities, whereas
other subjects may have more limited rights, obligations and capacities.
c. The variegated approach to subjects of international law has the consequence that
there are qualitatively different subjects.
i. At one end of the spectrum, a state, which has a complete ability to acquire
rights, obligations and capacities and to enter into legal relations is apt to be
described as a subject of international law; while at the other end of the
spectrum, a non-governmental organisation which is recognised by a single
inter-governmental organisation as having standing before it is also apt to be
described as a subject of international law.
ii. There must be significant qualitative differences between the two ends of the
spectrum.
iii. Yet in orthodox doctrine there are no criteria for locating subjects according
to the measure of their rights, obligations and capacities. Thus the variegated
approach to the doctrine of subjects has exposed a fundamental deficiency of
the doctrine: that the identifier 'subject' has no objective and meaningful
content, since it denotes no particular capacities: hence it fails to provide any
revealing description of the relationship of the entity to the international
legal system.
• Issue : The accountability of international corporations + the notion of legal personality.
Chetail argues that due diligence can play important role in ensuring accountability in MNCs.
• Notion of legal personality

1. No coherent doctrine of international personality - elusive concept + largely political
a. First, the question of who are the subjects of international law is closely connected
with the conception of international law itself (which itself is pretty contradictory)

with the conception of international law itself (which itself is pretty contradictory)
b. Second, subjects doctrine forms the clearing house between sources and
substance: it is through subjects doctrine that the international allocation of values
takes place and value allocation in the international sphere is non-static and
political (power centres keep shifting)
2. Still, we can cull out three conceptions of international personality

a. Restrictive
i. Analogical to how state is defined in international order
ii. Only if these three cumulative conditions met:-
1) has the capacity to conclude international agreements;
2) the capacity to establish diplomatic relations; and
3) the capacity to bring international claims
iii. You might bring IO under this but generally speaking, it is pretty restrictive
= against the newly developed sociological understanding of international
order where there is plurality of actors - too specific to apply to non state
entities
b. Extensive
i. Just one criterion - The capacity to be invested of rights and obligations by
international law
ii. Does not concern itself with capacity to bring international claims - which is
central and can blur the difference between subjects and objects(who rely on
subjects to enforce their claims)
iii. As Lauterpacht explained, "The faculty to enforce rights is not identical with
the quality of
a subject of law or of a beneficiary of its provisions. A person may be in
possession
of a plenitude of rights without at the same time being able to enforce them
in his
own name. This is a matter of procedural capacity. Infants and lunatics have
rights;
they are subjects of law. This is so although their procedural capacity is
reduced to
a minimum"
c. Intermediate
i. Developed in Reparations cases - the sliding scale conception
ii. an entity is a subject of international law only if two cumulative conditions
are fulfilled:
1) it is capable of possessing international rights and duties, and
2) that it has capacity to maintain its rights by bringing international
claims
iii. Criticism - circular definition = you can only do these two if you are already
a legal person but legal personhood is exactly what you are trying to
establish with these two capacities - I personally do not see any circularity.
iv. This is what Kate described as the variegated approach
1) ICJ stated - "The subjects of law in any legal system are not
necessarily identical in their nature or in the extent of their rights, and
their nature depends upon the needs of the Community"
2) The very concept of international personality is thus neither static nor
uniform.
• Anyway, from this discussion and the fact that there are different degrees of personality
which depend on the extent of the capacities attributed by international law - two different
types of personality (ICJ in Legality of the Use by a State of Nuclear Weapons in Armed
Conflict (WHO Case), Advisory Opinion) :-
1. Original/Plenary - personality which belongs to states as the primary subjects of

1. Original/Plenary - personality which belongs to states as the primary subjects of
international law
2. Derived/limited personality - which states confer on other entities
• So, can international companies have a limited personality derived from international law?
• Why need of this?

1. Debate arose during the 1960s in the context of nationalization and permanent
sovereignty over resources of newly independent states. Since the 1990s, the complex
issue of the international subjectivity of corporations has resurfaced in the context of
their alleged responsibility in respect of human rights
• 2 ends of debate
1. Restricted idea - MNC not subject of international law - 2 arguments
a. Political argument - if MNCs are treated as subjects, it will reduce the power of
states and would disrupt their traditional monopolies of being dominant in
international sphere
b. Technical argument - Do not satisfy the state-analogy's three condition. Moreover,
MNCs lack the power to directly participate in international law making (sic)
2. Intermediate idea/Variegated approach - MNCs have limited personalities

a. ICJ clearly held in reparation that any kind of analogy to statehood is not
necessary to infer attributes of legal personality. Ex: UN is legal person; that does
not mean it is like state or shares similar rights and obligations
b. The fact that MNCs lack the power to directly participate in international law
making is anyway not a part of definition given by ICJ in reparation and the only
need to capacity to have rights and obligations and brings claims which the MNCs
have; hence limited personalities
c. This is just a functional and limited personality (given for the sake of keeping
them responsible under international law)
d. Such limited personality granted by three distinct sources

i. Internationalized contracts (also called contrats d’Etat)
1) Contain clauses stating that they are under international law and
provide for international arbitration for disputes (meaning they have
rights and obligations which can then be enforced)
2) Reparation would make them limited legal personalities (affirmed in
Texaco Calasiatic v. Libyan Arab Republic's arbitral award)
3) Though, they can only enforce rights against the parties they enter into
contract with - rather than general enforcement against other states -
criticism of this conception - also it is argued that one state alone
cannot by the virtue of a contract grant statehood to MNC as other
states could deny recognizing such MNC as state.
ii. Treaties
1) Best way - many treaties already conferred the two essentials of
reparations like:-
a) 1965 Convention establishing the International Centre for the
Settlement of Investment Disputes
b) 1995 Energy Charter Treaty
c) 1993 North American Free Trade Agreement (NAFTA)
d) 1994 Protocol of Colonia for the Promotion and Reciprocal
Protection of Investments in MERCOSUR
e) the United Nations Convention on the Law of the Sea
(UNCLOS)
2) But again, however much rights and obligations these treaties give to
MNCs - they still have to be enforced against MNCs by domestic laws

MNCs - they still have to be enforced against MNCs by domestic laws
that state makes. Hence this follows the traditional mode where rights
and obligations are of states per se to enforce claims against its MNC.
iii. Customary law

1) The above mentioned treaties etc have proliferated in last fourty years
(paper written in 2013); formed a broader customary law process
acknowledging the international personality of corporations (though
the fact that we have failed (and often with strict revolt) to bring
together some convention in this direction - so not sure if customary
rule if formed and dubious whether majority of states follow this)
2) Code of conduct etc for MNCs not legally binding but shows a general
willingness of states to treat them as subjects
3) The majority of codes directly address the rules of conduct contained
therein to corporations and some of them even contain implementation
mechanisms enabling corporate behaviour to be scrutinized. Nice
example are codes adopted by the following -
a) Organization for Economic Cooperation and Development
(OECD)
i) require corporations to follow standards laid down in the
various fields of environment, human rights, corruption,
consumer interests and competition.
ii) Although it is explicitly stated that “observance of the
Guidelines by enterprises is voluntary and not legally
enforceable”, these guidelines are accompanied by a rather
detailed implementation mechanism
b) International Labour Organization (ILO)
i) Similar to OCED; albeit more elaborate human rights
standards but poor implementation
iv. Soft Laws also there

1) for regulating the conduct of such private actors.
2) Intergovernmental declarations and other related non-binding
enactments are useful for promoting a common understanding on new
issues of international concern and for encouraging predictable and
consistent behaviours of states.
3) Example - Guiding Principles on Business and Human Rights
a) Example - Guiding Principles acknowledge that, in parallel to the
duties of states, “business enterprises should respect human
rights. This means that they should avoid infringing on the
human rights of others and should address adverse human rights
impacts with which they are involved” (Principle 11)
But again, all these are inconclusive - so how about we move beyond the dichotomy of
subject/object and examine better ways to regulate MNCs (Higgins called this
obsession a "mental prison, erected at our own choosing"
• Beyond International Personality: Attribution and The Regime of State Responsibility

1. Andrew Clapham suggests “to move beyond the self-imposed formalistic legal problem
of subjectivity and concentrate on capacity” - “international rights and duties depend on
the capacity of the entity to enjoy those rights and bear those obligations; such rights
and obligations do not depend on the mysteries of subjectivity
2. Lauterpacht would also agree - focus on capacity not personality
3. So how do you bind them with their capacities (and not personalities)? - Use State
Responsibility
• State responsibility
1. When a corporation’s conduct can be attributed to a state, the state might incur

1. When a corporation’s conduct can be attributed to a state, the state might incur
international responsibility as provided by the 2001 Articles on State Responsibility of
the International Law Commission (ILC)
2. Usually, states are responsible for the official acts of their organs and agents, but they
may also be held responsible for the acts of private persons or entities when they have
delegated certain tasks to them or when the latter act “on the instructions of or under
the direction and control of ” a state.
3. So if there is direction or control of state over MNC - problem solved - what if not
under direction/control?
• Due Diligence
1. Even where the conduct of a private person or entity cannot be attributed to a state, a
state may nevertheless bear obligations of “due diligence” with respect to that actor.
2. So the rules on state responsibility can play a substantial role in determining the
primary legal obligations of a state with respect to multinational enterprises, including
those it has itself contracted and those operating on its own territory or on the territory it
controls
3. My reservation is - what sane state would agree to take on responsibility of random
MNCs? Or do you forcefully enforce it on states to take such responsibility?
• If MNC actions can obligate state, can state obligations similarly obligate MNC?
1. So, the wrongful conduct of a corporation is attributable to the state, thus rendering the
state internationally responsible BUT can one consider that the corporation is itself
vested of the state’s international law obligations by virtue of its attributability to the
state?
2. So the secondary rules on state responsibility have an impact on the scope of the
addressees of the primary rules of international law?
3. Against this argument

a. Both questioned answered in negative - by Articles on State Responsibility and
their commentaries : the two sets of primary and secondary rules are disconnected
from each other.
b. ILC does not explicitly answer this question and implicitly gives a negative
answer
c. The two Rapporteurs - Ago and Crawford not only remained silent but also
disrupted the due diligence argument (as discussed above) stating that, "it is clear
that the conduct of state agents acting in their private capacity is not attributable to
the state, even though the same action would have been wrongful if committed in
official capacity."
4. Support this argument

a. Steven Ratner states(pun intended), “the extant rules of state responsibility that
make the state liable for the acts of some private actors can provide for the
responsibility of those private actors as well.”- “because the state is responsible
for certain acts of private actors, those actors can also be held responsible for that
same conduct under international law”
b. US' Alien Tort Statute supports the idea - when a corporation’s conduct is
attributable to the state, the corporation “is liable as the state for violations of
human rights”
c. Our main guy - Ratner identifies three types of relations between the state and the
corporation that will warrant the extension of the states’ human rights obligations
to corporations
i. corporations as Governmental agents
ii. corporate complicity
iii. corporations as commanders

iii. corporations as commanders
d. Further, he states that there are three situations where a corporation could be
deemed an agent of the state and thus liable for the same human rights violations
i. when the human rights violations were instructed by the government to the
corporation,
ii. when the corporation “exercise[s] governmental authority as empowered by
the law of the state, or
iii. Exercise such authority in the absence or default of official authorities
• Due diligence
1. This obligation arises directly from the primary rules themselves.
a. Primary rules require specific conduct from states and define the conditions under
which that conduct is compulsory
2. By asserting the responsibility of a state because of a lack of due diligence, one is not
affirming that the state itself has committed the unlawful act that occurred
3. Rather, the state’s responsibility is engaged because it committed a separate violation of
international law by not taking all of the necessary measures available to prevent or to
punish the occurrence of a specific act
4. Sort of like vicarious liability under tort law - state be like masters and MNCs be like
servants (not 100% accurate - don't @)
5. Due diligence is an obligation of conduct and not of result
6. To judge whether the state has behaved diligently, its conduct is measured in light of
the circumstances of the case. Elements used by international tribunals for this purpose
are
a. degree of the effectiveness of the state’s control over the territory
b. the importance of the interest to be protected and
c. the degree of predictability of the violation
d. the degree of danger involved
7. The obligation to exercise due diligence is measured according to an objective criterion.

Obligations of due diligence exist in many fields of international law, including the law
of neutrality, diplomatic protection, human rights, or the protection of the environment.
In addition, states must take measures to avoid their territory being used to violate the
rights of other states.
• Conclusion
1. The notion of due diligence under general international law may fill the gap between
personality and accountability
a. From a systemic perspective, the state’s duty of due diligence may be revisited to
assert that private actors are the addressees of the primary obligation to respect the
relevant rule. Though they are not generally speaking a subject of international
law on their own, corporations are still accountable for violations on the basis of
the state’s duty to act in due diligence - hence corporations are thus bound by an
international rule through the notion of due diligence.
b. The state’s duty of due diligence and the international personality of multinational
corporations can be mutually reinforcing on a more practical plane.
2. According to the Reparation Case, a functional personality can be attributed to them by

some internationalized contracts and treaties. Integrating such legal instruments a
standard clause recalling the duty of corporations to respect some basic rules of
international law—including human rights law—can be an important tool for states to
fulfil their obligation to prevent violations as inferred from their own duty of due
diligence.
• Nice paper - very interesting - though...paper mein citations hai ya citations mein paper?

• Nice paper - very interesting - though...paper mein citations hai ya citations mein paper?
Hehe

Grant//IO
27 October 2020 18:44
• International Organizations as subjects of International Law by Thomas Grant & Rowan

Nicholson
• The authors here take two of ICJ's advisory opinions - Reparation for injuries and Certain
Expenses to show the limited legal personality of United Nations (which we had assumed
previously in Vincent Chetail); and how other international organisations (or even MNCs)
could be read into as limited international legal personalities.
• Reparation for injuries

1. Background
a. In 1948,the state of Israel established itself independent, free of the former British
mandate of Palestine.
b. In the same year, Folke Bernadotte (a Swedish diplomat recently appointed as the
UN mediator in Palestine) + Colonel André Sérot (a UN observer from France)
were assassinated by an Israeli paramilitary group - Lehi
c. Obviously, the United Nations paid expenses and indemnities to their heirs and
then claimed reparation from Israel; asking ICJ for its advisory opinion on two
questions
2. Israel's response
a. After all done, Bernadotte’s widow did not press for a claim so the United Nations
claimed against Israel solely for damage suffered to itself from the assassination
of Bernadotte
b. It asked Israel to apologise, to arrest the assassins, and for an indemnity of
$54,628.87 - Israel complied though was unable to arrest them
c. Isn't this a good example of state taking responsibility for individual actions
(assassins probably were not state directed assassins - I guess); so it is holding
itself responsible under due diligence principle? ; see Vincent Chetail
3. Question One - If an agent of the United Nations in the performance of his duties
suffers injury in circumstances involving the responsibility of a State, has the United
Nations, as an Organization, the capacity to bring an international claim against the
responsible de jure or de facto government with a view to obtaining the reparation due
in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons
entitled through him?
a. Tricky question - as international legal personality(ILP), that too, in their own

right was dubious for UN (and its predecessor LoN)
b. No doubt it had domestic legal personality - " Article 104 : The Organization shall
enjoy in the territory of each of its Members such legal capacity as may be
necessary for the exercise of its functions and the fulfilment of its purposes."
c. Court said - Yes, UN is ILP

i. "that it is a subject of international law and capable of possessing
international rights and duties, and that it has capacity to maintain its rights
by bringing international claims"
ii. Capacity meant ‘capacity to resort to the customary methods recognized by
international law for the establishment, the presentation and the settlement
of claims’ like - ‘protest, request for an enquiry, negotiation, and request for
submission to an arbitral tribunal or to the Court’
d. Though of course, as Lauterpacht had remarked in Chetail, having legal

d. Though of course, as Lauterpacht had remarked in Chetail, having legal
personality does not mean that one can enforce claims in their own right in the
international order
e. Reparation also answered another important point raised in Chetail's paper - that,
"one state alone cannot by the virtue of a contract grant statehood to MNC as
other states could deny recognizing such MNC as state."
i. While that was for MNCs, UN also had a similar problem, since Israel
(though independent) had yet not enrolled as a UN member at that time of
assassination and opinion
ii. So can, UN enforce its ILP status against a state that has not consented to?
iii. Court said yup - UN had ILP even relative to non-members (makes sense)
1) "fifty States, representing the vast majority of the members of the
international community, had the power, in conformity with
international law, to bring into being an entity possessing objective
international personality, and not merely personality recognized by
them alone, together with capacity to bring international claims"
a) Though, Pierre d' Argent critiqued - that if ILP was 'objective'
because it was thought so by the vast majority of the members of
the International community, would other IO with limited
membership and limited support be not ILP?
2) Court reiterated that variegated approach - focus on the functions and
purposes of UN while allowing it got bring claims
a) Wondering whether smaller, weak states can be brought under
the variegated approach too apart from IO and MNCs - to
equalise the playing field?
3) Laid down the functional protection doctrine (similar to diplomatic
protection) - Damage suffered by agents of the United Nations, which
were under its protection, could be included in the reparation to which
it was entitled.
4. Question Two - Who has priority in bringing international claim of reparation when
some agent hurt? - The UN (under which he was working) or the Home state of the
agent?
a. Obviously, you cannot ask defendant to pay reparation twice - so who gets it first?
(remember, Bernadotte's widow did not press claim against Israel but UN did for
itself. What if she had also pressed the claim?)
b. Court said that the parties should themselves find solution and cooperation in
goodwill
• Certain Expenses
1. What right, did the UN have to obtain funds from its member states to cover expenses
its actions incurred?
2. Article 17(2) of the Charter provides that the ‘expenses of the Organization shall be
borne by the Members as apportioned by the General Assembly’, so the General
Assembly asked the Court for its opinions on whether certain expenditures that the
Assembly had authorised and sought to apportion really constituted ‘expenses of the
Organization’ within Article 17(2)
3. There had been disputes - like the expenses for peacekeeping in Congo and middle east
a. Soviet union, Argentina, Spain, Saudi Arabia etc had said no to paying these
expenses
b. USA contributed to these
c. This impasse between the east and west bloc (read with cold war musings)
paralyses the security council and pushed it to threat of bankruptcy
4. This opinion might not have immediate link to our discussion on ILP of UN but wait
• The relevance of the two opinions in ILP discourse

• The relevance of the two opinions in ILP discourse
1. Reparation
a. Allowed limited ILP character of UN so that it can bring in claims and also gave it
rights
i. Rights, w.r.t. functions that it must do to be true to its motive in the
international sphere. So rights like protection of UN agents given, not only
through functional protection but also through treaties such as the
Convention on the Safety of United Nations and Associated Personnel
ii. Court also held that United Nations ‘must be deemed to have those powers
which, though not expressly provided in the Charter, are conferred upon it
by necessary implication as being essential to the performance of its duties -
this principle found reiteration in Certain expenses and later in Nuclear
Weapons opinion for WHO
iii. Thus, both these opinions nest legal rights into UN - as an ILP

Crawford//State.R
27 October 2020 18:44
• State Recognition - James Crawford, “Statehood and Recognition” (Chapter 1) in ‘The

Creation of States in International Law’ 4 (2007)
• Crawford's purpose in this reading is to state how recognition by positivistic formulation is
wrong.
• There has been an onslaught of emergence of new states - and one source of international
conflict is - that just because new states are emerging (which are important from the point of
international relations) does not mean that they are regulated by International law -
"formation of state is a matter of fact, not law" (i.e. states form when they form, not only
when being recognised by other states in international order)
• Recognition and Statehood

1. Early conception of Statehood : Till mid 18th century
a. Not much attention paid to recognition as it was overshadowed by the pride of
sovereignity
b. Sovereignity assumed that recognition flowed from inside, not outside : "location
of a supreme power within a territorial unit came from within; did not require
recognition of other states"
c. As Pufendorf put it, A king is king within his real, he does not need to take
consent for other states or princes to become a king or be treated like one and his
sovereignity would most certainly not be questioned by a foreigner
d. Though there were doubts whether the recognition was required of a parent state
from which a new state was formed due to revolution
e. By mid 18th century - it began to get more attention due to positivism - if law of
nations was conceived as based on the consent of states, then it was important to
recognize who represented that state - i.e. recognition of governments was
important (whether monarch or elected monarch was a state)
f. Though, still, position of earlier writer was consistent (like Marten, Von Steck)=
the de facto existence of sovereignity is sufficient and no recognition of foreign
powers required
2. Positivism
a. As positivism began getting power - there was a transition ; an accommodation
(seen in writings of Hall and Oppenheim)
b. Now, positivism assumes that obligation to obey internal law derived from the
consent of individual states. But if a new state subject to international law came in
to existence new legal obligations would be created for the already existing states.
Hence, these the consent of these already existing states was necessary to either
i. In support of creation of a new state or
ii. To it being subject to international law; as far as other states were concerned
c. Hence, other's consent became important - but it was not unanimous- this position
further solidifies in coming times
3. The 19th century

a. Complete unanimity - consent of civilised nations came to be seen as basis of IL
b. Five major positions came to be

i. IL came to be understood as something existing between civilised nations'
society
1) This society consisted of primarliy the European states between whom
IL evolved and also consisted to other states that were accepted as
members of society by the original members - like USA, Turkey
(eurocentrism)

(eurocentrism)
2) Hence, mere statehood did not guarantee membership in the society -
common consent of civilised nations did
ii. Non-member states got recognition which made them members and bound
them to IL
1) Hence, non member states were not bound to IL and civilised nations
were also not bound towards non-members. Example - the behaviour
with Africa and China
iii. Only states recognised as members were bound by IL and were ILP
1) Further, only states could consent to bringing in other states as
members, hence, only states were subjects of international law; not
individuals or other bodies
iv. IL was binding because it was recognised and accepted

1) This was in line with the positivistic cannon that assumed that
obligation to obey internal law derived from the consent of individual
states.
v. Juridical Baptism - It did not matter how an entity became state, what
territories it took, as long as they were recognised and juridically baptised
(as territories etc were matter of fact, not of law)
4. Modern International Law
a. Internal and external consequences of non-recognition
i. Court began to refuse to determine questions of statehood, even when they
were between private parties as it was thought that status was affirmed by
executive recognition
1) They divided the concept in internal and external consequences
2) The executive is concerned with external consequences of non-
recognition
3) But courts were only concerned with internal consequences of non-
recognition. Hence in the Hesperides Hotels case, Denning asked
whether law of Cyprus could be applied to a tort claim even though
UK did not recognise it as a state?
a) Court said, we don't care - we are concerned with internal
consequences - to the extent they relate to private individuals, as
justice and common sense and public policy require (similar to
conception of private international law)
• Recognition Debate - 2 factions
1. Constitutive Theory
a. Definition
i. The positivist idea that other state consent is must for recognition
ii. It finds support of even non-positivist authors like Lauterpacht - he stated
that full international personality cannot rise by itself. Someone has to
facilitate it and unless a neutral organisation is created to do exactly this, it is
the job of other existing states to ascertain legal personality of newer states -
these determinations should then have legal effect as well
b. Criticism
i. Unanimity
1) Yes, individual states can ascertain the legality of new states or
situations but there would both be assent and dissent to this; an
impasse would be reached and international order would then become
a system of merely expressing problems, not resolving them
2) There would also be lack of conclusiveness if different states have

2) There would also be lack of conclusiveness if different states have
dissenting views as to statues of a particular entity, where they are not
bound to agree or disagree with anyone's opinion. So for example,
a) Belize was not recognised by Guatemala
b) Macedonia was not recognised by Greece
c) Liechtenstein was not recognised by Czechoslovakia
So does this mean that these entities did not exist at all?
3) Also, if everything is state recognition, then there would never be
illegal or invalid or void recognition
4) Relativism - Kelsen proposed
a) constitutive theory claims to give an 'absolute' existence to a
state, but it is clear that the so recognised states are only
relatively as a legal body to those who recognise it.
b) What of other states which do not recognise a new state as ILP?
c) Then it would be wrong to say that every states, approved by
constitutive theory is 'absolutely' ILP - at best, it is ILP for those
who recognise and not ILP for those who don't.
5) Does the denial of recognition to an entity 'X' (that could qualify as
states otherwise) allow the non-recognising states to act as if 'X' was
not a state, ignore its nationality, intervene in its affairs and deny it
exercise of state rights? - Constitutive theory would say yes, it allows.
Logically, the answer should be no - the declaratory theory helps here.
2. Declaratory Theory
a. Definition
i. The recognition of new state is a mere political act, and does not have any
implication on the existence of its statehood as a subject of international law
ii. This accepts the role of recognition - at the same time - avoids the problems
of constitutive theory
b. Citations of the theory

i. Tinoco Arb.
1) Non-recognition does not mean that some state lacks sovereignity and
complete governmental control - it just means that it has not attained
enough independence and control that it is entitled to, under
international law; i.e. non-recognition is a mere inquiry into
illegitimacy or irregularity of origin of a country
ii. German Polish Mixed Tribunal

1) A state exists by itself; recognition is nothing else than a declaration of
its existence
iii. Report of Commission of jurist on the Aland Islands

1) There is a legal value in recognition but it is not conclusive
iv. Badinter Arb. Commission

1) The effect of recognition by other states is purely declaratory
v. Bosnia Genocide Case

1) Federal Republic of Yugoslavia argued that court was not competent to
adjudicate under Genocide convention because it and Bosnia
Herzegovina has not mutually recognised each other as state when
proceedings were initiated
2) Court said nah, the recognition was later given acc to Dayton Accord -
a mere procedural technicality
• Hence, we see that declaratory theory is kind of return to the earliest conception where the
king was king because he was king, not because he was called king by other kings.

Crawford//State
27 October 2020 18:45
• Statehood - James Crawford, “The Criteria for Statehood” (Chapter 2) in ‘The Creation of
States in International Law’ 37 (2007)
• No generally accepted or satisfactory legal definition of statehood

1. ILC's draft on Declaration on the Rights and Duties of States - tried different methods -
but everything was excluded from final draft, as definiton of 'state' was too
controversial and fraught with political implications
2. Vienna Convention on Law of Treaties - earlier draft had a definiton of state - that
stated, " State means an entity consisting of a people inhabiting a defined territory under
an organised system of government and having the capacity to enter into international
relations directly or through other states…" - this was deleted
3. GA's Definition on aggression also failed to define state
• Why state? What is its characteristics? - Crawford draws up five principles; largely hinged on
sovereignity
1. States have plenary competence to perform acts and make treaties in international
sphere
2. They are exclusively competent w.r.t. internal affairs (though, of course there are
limits) - Article 2(7) of UN Charter
3. Not subject to compulsory international process, jurisdiction or settlement without their
consent
4. They are equal to other states, irrespective of their size, might, standing - Article 2(1) of
UN Charter; though they are not entitled to same voting powers but have same voice
and influence; a dwarf albeit shorter is still as much as a man as a tall person.
5. Lotus Presumption (given by PCIJ in Lotus) : Presumptions in favour of these
principles i.e. in case of doubts an international adjudicator will decide in favour of the
freedom of action of the states.
• Interpretation of term 'state' - contextual

1. Liberally construed when it must indicate plenitude of functions - like under UN
Charter's Article 4(1) - "Membership in the United Nations is open to all other
peace-loving states"
2. Narrowly construed when specific function required under a statute, treaty or technical
situtation
• What is not conclusive of a state?

1. Possession of a nationality
a. 'A' mandates or Andorra had nationality but not considered state
2. Being an entity that has rights and obligations under IL or may or may not be
responsible for its conduct
a. Organisations like insurgent or devolving governments, IL, red cross etc have
such character but are not necessarily states
3. Competency to develop and change customary law
a. Yes, true in some sense but even not all states have this power, so they are not
states? - of course they are coz his competency is not a conclusive proof
4. Definiton of subjects under Article 2(4) of Charter - applies even for non-state entities
• Ex factis just oritur (law arises from the fact) - earlier, we had been saying that certain issues
are of fact and not law, so we are ignoring them. But what if certain facts give rise to law.
What if certain factual characteristics of an entity make it a legal state?
• Best criterion for statehood : Montevideo Convention on the Rights and Duties of States,

• Best criterion for statehood : Montevideo Convention on the Rights and Duties of States,
1933 : when all these met; Four principles of effectiveness among territorial units (note how
there is no 'recognition' in these four):-
1. Defined Territory
a. Territorial sovereignity means the exclusive right to display the activity of the
state
b. Sovereignity comes in all shapes and sizes
i. No requirement of a minimum territory
ii. No rule requiring contiguity of territory
1) Non-contiguous entities like east Prussia from Germany, East Pakistan
from West Pakistan, Alaska from Lower forty eight - does not mean
that East Prussia or Pakistan or Alaska are not state bodies
2) In fact, many archipelago states occur in dis-contiguous bunches of
land, scattered in the ocean
3) Fragmentation might be a disability making independence difficult to
achieve and hard to maintain - but still, cannot be determinative
against statehood claim
iii. Relation between territorial sovereignity and statehood

1) In nineteenth century, not much concern was paid to how territories
were acquired - we saw; territorial sovereignity in not analogous to
ownership of land
2) So establishment of a new state on certain territory defeats the claim
by other states on that territory in whole. If only parts of the territory
are in disputes, the new state still survives but will have to work out
the difference.
3) That is, a new state may exist despite claims to its territory, just as an
existing state continues despite such claims. Two such claims:-
a) Claims to entire territory
b) Claims to boundaries of territory
4) It has been oft held that claims less than entire territory do not affect
statehood
a) German Polish Mixed Arb Tribunal
i) Delimitation of territories important - but - one cannot go as
far as to suggest that if such legal delimitation is not
affected, then state has no territory whatsoever - it is
enough for a territory to have sufficient consistency even
though the boundaries are not accurately delimited and that
state exercises public authority in that territory
b) North Sea Continental Shelf case - held the same
c. This clarifies that while having territory is important, what is more important is
the government and independence it has
2. Permanent Population
a. States are not aggregative of just territories but also population
b. No minimum number of population required
c. Rule requires state to have permanent population, not a population of permanent
nationality. Nationality is dependent on statehood and not vice-versa
d. 2 debates on nationality
i. All personas may be regarded as national of a particular state for
international purposes even before the state had established rules for
granting or determining nationality - that is, on accession or making of a
new state, the persons automatically should get the new nationality and their
previous one nationality should go away (like in India-Pakistan partition)
1) Population follows the change of sovereignity in matters of nationality

1) Population follows the change of sovereignity in matters of nationality
2) Acquisition of Polish Nationality case upheld this principle
3) ILC's Draft articles on nationality of natural persons in relation to the
succession of state - article 1 - gave the right to person to have at least
one nationality out of the old and the new state
4) This conception came under test in Eritrea-Ethiopia Claims
Commission - referendum case : read
ii. In absence of a treaty, a new state is not obligated to extend its nationality to
all personas resident on the territory
1) It cannot be asserted conclusively that IL in its present form puts
obligation on any new state to compulsorily grant nationality - it is
indeed its prerogative
3. Government - Central to statehood (as all other criteria depend on it)

a. Territory is not just privately owned or acquired land - it requires governmental
power to be exercised over it
b. Not so easy as it looks - Take for example, Belgian Congo

i. Everything that could go wrong with its government did go wrong!
ii. Granted hurried independence in 1960 - hence there was absence of any
effective preparation for independence
iii. Due to secessionary movements, civil war started
iv. Central government divided into two opposition fractions; both claiming to
be lawful government
v. Belgium (that was previously holding Congo) launched its troops claiming it
to be humanitarian intervention
vi. Congolese authorities went bankrupt - required international aid
vii. UN forces also entered to keep peace, order and prevent civil war
c. No one would call the Congo government effective in any measure - yet, in 1960,
Congo was a state in full sense. It was widely recognised as a state, admitted into
UN and all
d. So keeping this example in mind, what is the criterion for 'effective state'? - Three
possibilities
i. International recognition of Congo was premature; Congo did not have
effective government and hence was not state
ii. Congo did not have an effective government but became a state just
because of the constitutive theory's legitimization
iii. Requirement of 'effective government' is less stringent in certain cases for an

entity to be called a state - Crawford agrees to this, not the above two
possibilities.
1) Effective government has two needs - the right to exercise authority
and actual exercise of authority
2) Now of course, Congo had the first need satisfied - Belgium resigned
the right to exercise authority in favour of the new entity of Congo.
3) Regarding the second conception , Commission of Rapporteurs
(speaking against the strict jurist in the Finland territory case in 1917)
have asked all to be lenient - a secessionary state need have immediate
effective government and exercise of authority. First law and order
need to be restored and foreign assistance is legal on that issue
4) But at least there should be continuous, coherent government
e. Conclusion relating to governance

i. To be a state, entity must posses a government or system of government in
general control of its territory to the exclusion of other entities not claiming
through or under it

through or under it
ii. No specific requirement as to nature and extend of this control
iii. Moving requirement of 'effectiveness of government'

1) If statehood of the entity is opposed under title of international law =
apply requirement of effectiveness strictly
2) If government that is not able to effectively control had obtained
consent from previous authority to govern and is exercising certain
degree of control = apply requirement of effectiveness leniently (my
assumption)
3) If all total a new state being created = apply strictly
4) But if it is a subsistence or extinction of an established state = apply
leniently
5) If an entity is trying to secede from within a state = apply strictly
4. Capacity to enter into Relations with other states

a. Not that important as entities other than state also have this capacity
b. This capacity is a consequence of statehood, not a criterion for it
5. Independence - extra brownie criterion : central too

a. Lack of independence could be so high that an entity is not a state but an
internationally indistinguishable part of another dominant state
b. Or an independence may be such that it is legal nullity or of no use at all - puppet
state
c. Or independence may be such that there is independence in basic sense that too in
specific manner and situtation - becomes a case of agency and the dominant state
is responsible for the acts of the other
d. It is important to distinguish independence as an initial qualification for statehood
and as a condition for continued existence
i. A new State attempting to secede will have to demonstrate substantial
independence - both formal and real from the State of which it formed part
before it will be regarded a proper state
ii. This standard might be lower for a continuing state (I am assuming - the
book cut off here).

Shaw//Gov
27 October 2020 18:45
• Recognition of Governments by Malcolm Shaw

• This paper states how recognition of government is different from state recognition
(something we have been religiously pondering over till now).
• Recognition of state vis-à-vis government different

1. A change in government, does not affect the identity of the state itself
2. The state does not cease to be an international legal person because its government is
overthrown.
3. The recognition or non-recognition of a new administration is irrelevant to the legal
character of the country.
4. Recognition of a state will affect its legal personality, whether by creating or
acknowledging it, while recognition of a government affects the status of the
administrative authority, not the state.
5. It is possible, however, for recognition of state and government to occur together in
certain circumstances. This can take place upon the creation of a new state - like Israel;
whose statehood was recognised by recognising its provincial government de facto by
US - hence, recognition of the government implies recognition of the state, but it does
not work the other way.
6. Recognition of a government has no relevance to the establishment of new persons in
international law.
7. If a government is unrecognised, there is no exchange of diplomatic envoys and thus
problems can arise as to the enforcement of international rights and obligations
• Recognition - state or government - is a political consideration.
• Sometimes given for even illegal considerations - the effective control doctrine - simply
acceptance of the realities of the transfer of power (even if illegal) and suggested that once a
new government effectively controlled the country and that this seemed likely to continue,
recognition should not be withheld
1. The United Kingdom on a number of occasions adopted this approach. It declared that
the test employed was whether or not the new government enjoyed, ‘with a reasonable
prospect of permanence, the obedience of the mass of the population . . . effective
control of much of the greater part of the territory of the state concerned’
a. It is with this attitude it recognised communist government of China and the
Russian-installed government of Hungary
b. Though this approach cannot be regarded as an absolute principle in view of the
British - it has refused over many years to recognise as North Vietnam, North
Korea and the German Democratic Republic as states
2. The Tinoco arbitration - example of the ‘effective control’ concept

a. In 1919, the government of Tinoco in Costa Rica was overthrown and the new
authorities repudiated certain obligations entered into by Tinoco with regard to
British nationals.
b. Justice Taft, the sole arbitrator decided that since the administration was in
effective control of the country, it was the valid government irrespective of the
fact that a number of states, including the United Kingdom, had not recognised it.
c. Controverting himself, Justice Taft in Great Britain v. Costa Rica had stated that
the non-recognition by other nations of a government claiming to be national
personality, is usually appropriate evidence that it has not attained the
independence
• Doctrine of effectual control - pretty factual - there are other doctrines too, in juxtaposition

• Tobar Doctrine or the doctrine of legitimacy - suggests that governments which came into
power by extra-constitutional means should not be recognised, at least until the change had
been accepted by the people
1. Applied particularly by the United States in relation to Central America and was
designed to protect stability in that delicate area adjacent to the Panama Canal.
2. The doctrine amounts to the promotion of non-recognition in all revolutionary
situations and it is, and was, difficult to reconcile with reality and political
consideration.
• Estrada Doctrine - suggests the automatic recognition of governments in all circumstances.

1. But again, just like Tobar, this doctrine is also is disconnected from reality - it attempts
to lay down a clear test for recognition in all instances excluding political
considerations and exigencies of state and is thus unrealistic, particularly where there
are competing governments
2. Most importantly, this doctrine risks minimising the distinction between recognition
and maintenance of diplomatic relations - just because you are trying to maintain
diplomatic relations with someone does not mean that you recognise them
a. In 1977, United States declared that, "The Administration’s policy is that
establishment of relations does not involve approval or disapproval but merely
demonstrates a willingness on our part to conduct our affairs with other
governments directly"
b. Similarly, in 1980, the UK government announced that it would no longer accord
recognition to governments as distinct from states as it afraid that recognition
meant approval (i.e. not formally recognising governments) - other nations like
Belguim, France, Australia and canada also followed suit
i. But such disinclination of recognising governments did not mean much - it
just shifted the focus from formal recognition to informal ‘dealings’. Later,
UK announced that it would continue to decide the nature of dealings with
unconstitutional regimes: in the light of [an] assessment of whether they are
able of themselves to exercise effective control of the territory of the state
concerned, and seem likely to continue to do so - a return,, back to the
effective control doctrine.
• De facto and De Jure recognition

De facto De Jure
1. Implies that there is some doubt as to the long-term 1. Recognising state accepts that the
viability of the government in question effective control displayed by the
government is permanent and
firmly rooted and that there are no
legal reasons detracting from this
2. Involves a hesitant assessment of the situation, an 2. Kind of final
attitude of wait and see, to be succeeded by de jure
recognition when the doubts are sufficiently
overcome to extend formal Acceptance
Ex: the United Kingdom recognised the Soviet
government de facto in 1921 and de jure in 1924.
Similarly US recognised Israel's provincial
government de facto first and later de jure when it
held its first elections
3. Easy to revoke. Where a de facto government loses 3. Hard to revoke once given. De
the effective control it once exercised, jure recognition is intended to be
the reason for recognition disappears and it may be more of a definitive step and is
revoked more
difficult to withdraw
4. De facto cannot directly enter a claim to property 4. De jure entity can

4. De facto cannot directly enter a claim to property 4. De jure entity can
held in recognising land
5. De facto does not include diplomatic relations 4. De jure does
1. In cases of civil war the distinction between de jure and de facto recognition is
sometimes used to illustrate the variance between legal and factual sovereignty i.e. de
facto for those who factual, actually held sovereignity over a territory and de jure when
they later legal hold it.
a. For example, during the 1936–9 Spanish Civil War, the United Kingdom, 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.
• Premature recognition
1. Happens particularly for a new state that has emerged or is emerging as a result of
secession, and intervention in the domestic affairs of another state by way of premature
or precipitate recognition - in such cases, the recognising state will need to consider
carefully the factual situation and the degree to which the criteria of statehood (or other
relevant criteria with regard to other types of entity with regard to which recognition is
sought) - i.e. pretty factual
2. Examples
a. Nigerian federal government with respect to the recognition of ‘Biafra’ by five
states.
b. Recognition of Croatia by the European Community and its member states
(together with Austria and Switzerland) was premature
i. Croatia at that time, and for several years thereafter, did not effectively
control some one-third of its territory.
ii. In addition, the Yugoslav Arbitration Commission had taken the view that
Croatia did not meet fully the conditions for recognition laid down in the
European Community Guidelines since the Constitutional Act adopted by
Croatia did not fully incorporate the required guarantees relating to human
rights and minority rights.
c. Recognition of Bosnia-Herzegovina by the European Community and member
states and by the USA was premature, particularly since the government of that
state effectively controlled less than one-half of its territory
d. One might be tempted to give similar example for Congo but Crawford had
made it pretty clear that it was not premature; see Crawford, Statehood
3. Recognition can also be delayed sometimes - like the late recognition of Macedonia, no
rec of Israel by Arab Nations
4. Everything political man - recognition is a nice tool of political leverage
• Implied recognition
1. Recognition does need not be express or in open, unambiguous and formal
communication, but may be implied in certain circumstances as it is founded upon the
will and intent of the state that is extending the recognition.
2. Due to this facility of indirect or implied recognition is available, many states have
made express declaration that a particular action involving another party is by no
means to be interpreted as comprehending any recognition
a. Like Arab countries with regard to Israel
3. Thought there might anyway be implicit conditions signalling recognition

a. A message of congratulations to a new state upon attaining sovereignty will imply
recognition of that state
b. Similarly, formal establishment of diplomatic relations will imply recognition of
that state
c. Though, but the maintenance of informal and unofficial contacts (like between the

c. Though, but the maintenance of informal and unofficial contacts (like between the
United States and Communist China during the 1960s and early 1970s in Warsaw)
will not
d. The issuing of a consular exequatur, the accepted authorisation permitting the
performance of consular functions, to a representative of an unrecognised state
will usually amount to a recognition of that state, though not in all cases
i. Exception - A British Consul has operated in Taiwan, but the UK does not
recognise the Taiwan government
e. A conclusion of a bilateral treaty between the recognising and unrecognised state,
as distinct from a temporary agreement, might imply recognition
i. Though, there are a number of such agreements between parties not
recognising each other
f. The making of claims by a state against an entity will not necessarily imply
recognition
g. Recognition is not normally to be inferred from the fact that both states have taken
part in negotiations and signed a multilateral treaty, for example the United
Nations Charter
i. Israel and many Arab countries are UN members, this did not affect Arab
non-recognition of the Israeli state.
h. Where the state concerned has voted in favour of membership in the UN of the
entity in question, it is a natural inference that recognition has occurred.
i. The UK, for example, regarded its vote in favour of UN membership for the
former Yugoslav republic of Macedonia as amounting to recognition of that
entity as a state.
ii. Irrespective of recognition by individual states, there is no doubt that
membership of the UN is powerful evidence of statehood since being a state
is a necessary precondition to UN membership by virtue of article 4 of the
UN Charter.
i. In case of common participation in an international conference, similar
considerations apply, although non-recognising states have often declared
expressly that their presence and joint signature on any agreement issuing forth
from the meeting is in no way to be understood as implying recognition
i. Ex : Arab states with regard to Israel.
• Conditional Recognition
1. Refers to the practice of making the recognition subject to fulfilment of certain
conditions, for example, the good treatment of religious minorities as occurred with
regard to the independence of some Balkan countries or the granting of most-favoured-
nation status to the recognised state
2. Ex: Litvinov Agreement of 1933 whereby the United States recognised the Soviet
government 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
3. However, breach of the particular condition does not invalidate the recognition. It may
give rise to a breach of international law and political repercussions but the law appears
not to accept the notion of a conditional recognition as such - The status of any
conditions will depend upon agreements specifically made by the particular parties
• Collective recognition
1. Not very popular
2. Member states often have reserved the right to extend recognition to their own
executive authorities and did not wish to delegate it to any international institution for
collectively recognising.
3. Ex: The membership of the United Nations constitutes a powerful evidence of
statehood; thus is collective recognition. But that, of course, is not binding upon other
member states who are free to refuse to recognise any other member state or
government of the UN
• Withdrawal of recognition

• Withdrawal of recognition
1. 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, but in such instances
withdrawal of recognition of the previous administration is assumed and does not have
to be expressly stated,
2. Withdrawal of recognition of one government without recognising a successor is a
possibility and indeed was the approach adopted by the UK and France, with regard to
Cambodia in 1979
a. Though as already seen, with the adoption of the new British policy on
recognition with regard to governments, the position is now that the UK
government will neither recognise nor withdraw recognition of regimes
3. Withdrawal of recognition is not a very general occurrence but in exceptional
conditions it remains a possibility
a. United Kingdom 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 the dispatch of military aid.
b. 1979 recognition of the People’s Republic of China as the sole legal government
of China entailed the withdrawal of recognition or ‘derecognition’ of the Republic
of China (Taiwan)
i. Exceptionally, this was not to affect the application of the laws of the United
States with respect to Taiwan in the context of US domestic law - the usual
consequences of non-recognition have not flowed, but this is due to a formal
and deliberate act of policy
4. Breaking diplomatic relations is not same as withdrawing recognition
a. The usual method of expressing disapproval with the actions of a particular
government is to break diplomatic relations.
b. This will adequately demonstrate aversion like - the rupture in diplomatic
relations between the UK and the USSR in 1927, and between some Arab
countries and the United States in 1967, without entailing the legal consequences
and problems that a withdrawal of recognition would initiate.
• Non-recognition
1. doctrine of non-recognition - where, under certain conditions, a factual situation will
not be 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
2. legal rights cannot derive from an illegal situation (ex injuria jus non oritur)
a. Ex: Japanese invasion of Manchuria in 1931 - The US Secretary of State 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 - this US stance came to be called the Stimson
doctrine
b. It was reinforced 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
3. Though there were always exceptions to this moralistic standpoint
a. The Italian conquest of the Empire of Ethiopia was recognised
b. The German takeover of Czechoslovakia was accepted
c. The Soviet Union made a series of territorial acquisitions in 1940, ranging from
areas of Finland to the Baltic States (of Lithuania, Estonia and Latvia) and
Bessarabia. These were recognised de facto over the years by Western powers
(though not by the United States)
4. Change came strictly after 1945

a. Article 2(4) of the UN Charter prohibits the threat or use of force inter alia against
the territorial integrity of states
b. the draft Declaration on the Rights and Duties of States, 1949, emphasised that

b. the draft Declaration on the Rights and Duties of States, 1949, emphasised that
territorial acquisitions by states were not to be recognised by other states where
achieved by means of the threat or use of force or in any other manner
inconsistent with international law and order
c. The Declaration on Principles of International Law, 1970, also included a
provision to the effect that no territorial acquisition resulting from the threat or use
of force shall be recognised as legal, and
d. Security Council resolution 242 (1967) on the solution to the Middle East conflict
emphasised ‘the inadmissibility of the acquisition of territory by war’
5. Example of non-recognised ones

a. Rhodesia unilaterally proclaimed its independence in November 1965 and in the
years of its existence did not receive official recognition from any state at all,
although it did maintain diplomatic relations with South Africa and Portugal prior
to the revolution of 1974
b. Against it, the Security Council passed a resolution calling upon all states not to
accord it recognition and to refrain from assisting it.
c. Bantustans, territories of South Africa declared by that state to be independent -
treated similarly
d. Security council raving bitches
i. The Security Council adopted resolution 541 in 1983, which deplored the
purported secession of part of Cyprus occupied by Turkey in 1974 and
termed the proposed Turkish Cypriot state ‘legally invalid’
ii. In 1990, the Security Council adopted resolution 662, which declared the
Iraqi annexation of Kuwait ‘null and void’ and called on all states and
institutions not to recognise the annexation.
e. The principle of non-recognition of title to territory acquired through aggression
in violation of international law was also reaffirmed in the Brcko Inter-Entity
Boundary award with regard to aggression in Bosnia
f. ICJ in Nambia
i. The role of non-recognition as an instrument of sanction as well as a means
of pressure and a method of protecting the wronged inhabitants of a
territory was discussed
ii. The Court held that since the continued South African occupancy was
illegal, member states of UN were obliged to recognise that illegality and
the invalidity of South Africa’s acts concerning Namibia and were under a
duty to refrain from any actions implying recognition of the legality of, or
lending support or assistance to, the South African presence and
administration
• Legal effects of recognition - two

1. Internal
a. Recognition is fundamentally a political act, it is reserved to the executive branch
of government.
b. This means that the judiciary must as a general principle accept the discretion of
the executive and accept and enforce the legal consequences which flow from the
executive’s political decision,
c. Crawford had shown this too - Internal and external consequences of non-
recognition being developed by courts
d. Recognition is constitutive, because the act of recognition itself creates legal
results within the domestic jurisdiction.
i. In US + UK - the courts feel themselves obliged to accept the verdict of the
executive branch of government as to whether a particular entity should be
regarded as recognised or not
ii. The recognised state's position changes
1) It may sue in the domestic courts and be granted immunity from suit in
certain instances.
2) Its own legislative and executive acts will be given effect to in the

2) Its own legislative and executive acts will be given effect to in the
courts of the recognising state and
3) its own diplomatic representatives will be able to claim the various
immunities accorded to the official envoys of a recognised state
4) It will be entitled to possession in the recognising state of property
belonging to its predecessor.
2. External/International
a. Recognition of a state or government is a legal acknowledgement of a factual state
of affairs.
b. Though, not be assumed that non-recognition of, for example a state will deprive
that entity of rights and duties before international law, excepting, of course, those
situations where it may be possible to say that recognition is constitutive of the
legal entity.
c. Though, positivists in the 19th century (as shown in Crawford) had explicitly
denied the application of IL to non-member, non-recognised entities
d. Shaw - the political existence of a state is independent of recognition by other
states, and thus an unrecognised state must be deemed subject to the rules of
international law
e. It cannot consider itself free from restraints as to aggressive behaviour, nor can its
territory be regarded as terra nullius
f. States which have signed international agreements are entitled to assume that
states which they have not recognised but which have similarly signed the
agreement are bound by that agreement
i. United Kingdom treated the German Democratic Republic as bound by its
signature of the 1963 Nuclear Test Ban Treaty even when the state was not
recognised by the UK.
g. Non-recognition, with its consequent absence of diplomatic relations, may affect
the unrecognised state in asserting its rights or other states in asserting its duties
under international law, but will not affect the existence of such rights and duties.
• The subsequent portions on US & UK are not confirmed to part of syllabus…

Shaw//Juris
27 October 2020 18:45
• State Jurisdiction by Malcolm Shaw

• Criminal Jurisdiction
1. Territoriality Principle - basic principle of sovereignity to have power to legislate w.r.t
activities within state
2. Offence might even if committed not wholly on territory of a state and may be in part of
other territories.
3. Like, Scottish courts had jurisdiction w.r.t alleged bombers of the airplane which
exploded over Scottish town of Lockerbie as the locus of offences
4. Nature of territorial sovereignity examined in Lotus Case
• Jurisdiction
1. Jurisdiction basically concerns the power of the state to effect property and
circumstances.
2. It reflects the principles of state sovereign equality, equality of states, and non-
interference of foreign states in domestic affairs
3. Jurisdiction – means territorial jurisdiction of a state – executive and judiciary’s power
to operate.
4. It is central feature to state sovereignty
5. It is exercise of authority which may alter, terminate or create which may create the
legal rights and responsibilities. Sovereignty is exercised over the people and territory
through jurisdiction.
6. This may be achieved through legislative action, executive action or through judiciary.
We will focus on executive and judicial operation.
7. Jurisdiction is definitely linked with the territory, but it is not exclusively that. Usually,
the meaning is territorial jurisdiction – it does mean other meanings as well. Many
countries have jurisdictions to try cases outside its physical jurisdiction as well and it
might be based on certain category, person or situation where it may be immune from
territorial jurisdiction. Subjects or cause of action is not in particular territory can also
be tried in a sovereign country’s court. Also, there might as well be a subject on the
territory where you may not have jurisdiction over (examples: Flag ship and a diplomat
respectively).
• Grounds of exercising jurisdiction in international law are different in public IL and private
IL. In Private IL, subjects may be well be regulated by domicile and residence, but in public
IL matters, domicile or residence is not usually important; subject to exceptions.
• Principle of domestic jurisdiction:

1. Follows from sovereignty that while a state is supreme and sovereign internally, it may
not interfere in matters of other sovereigns
2. That jurisdiction is different from the domestic jurisdiction.
3. Domestic jurisdiction is relative concept.
4. Changing principles of IL has effect in limiting and reducing the extent in the
application of jurisdiction.
5. International developments may have repercussions on the concept of jurisdiction and
thus falls within the ambit of international law.
• How is typical nature of sovereignty different from domestic jurisdiction?

1. Nature of exerting state supremacy internally within its territorial frontiers is
SOVEREIGNTY.
2. Domestic jurisdiction – it depends on the laws of the nation and relative concept to its
laws. If laws of the nation say about jurisdiction it also has international repercussions
making it a dynamic concept depending on how the laws of the country are framed and
changed.
3. ICJ case of Anglo Norwegian Fisheries case
a. stressed that although it is true that the act of delimitation of territorial waters is

a. stressed that although it is true that the act of delimitation of territorial waters is
necessarily unilateral act; it was only the coastal states are validated to undertake
it. Here only the coastal states are obligated to undertake it. Validity of the
delimitation is on the coastal state itself.
b. Domestic jurisdiction is relative and it changes according to whatever changes
takes place domestically.
c. But when it enters the domain of IL, the domestic decisions has to comply with
the basic principles of international law. This was established by this case. So you
can do whatever you want to – change the delimitation of the territorial waters –
but when it starts affecting international community – esp. with territory, do not
violate IL.
4. Also, in the Nottebohm case, while the states can formulate such rules as it wished,
regarding acquisition of nationality, nationality comes within the purview of IL, so act
under the basic principles of IL.
• Legislative, Executive and Judicial jurisdiction:

1. Legislative jurisdiction refers to supremacy of the constitutionally recognized organs of
the state. Authority to make binding laws in the territory.
2. This is valid and recognized jurisdiction by IL.
3. In certain circumstances, this jurisdiction goes beyond territory – example martial law
applies outside territory as well. Till where you can apply a foreign law in a territory?
4. So, certain laws are there whose limit is beyond territorial jurisdiction so can a foreign
country accept that? How does it fit in the international law?
5. Depends on the provisions of the law of both the countries and how it is interpreted in
international law – that whether it infringes sovereignty of the other country – what the
other country’s laws speak about that etc.
6. In the field of conflict of laws, it is rare for countries to impose penal and tax laws in
another states. In case of adoption of laws in contravention to international laws- esp
with regards to treatment of foreign aliens and their property – will be a breach of IL.
• Executive Jurisdiction
1. Capacity of the state to act to act within the border of a state through executive actions.
2. It is assumed because of the state sovereignty that state officials will not carry out their
functions in the foreign soil
3. However, the extent of the operation beyond the obvious territorial jurisdiction defines
the executive jurisdiction.
4. Usually the legislature does not make the laws which goes beyond its territory, states
are independent sovereigns and hence they usually do not operate laws and decisions on
other nations.
• Judicial Jurisdiction- Grey area.

1. The power of the court of a country to try cases in which a foreign factor is present
2. Any countries’ decisions and orders are not discussed or subjects of law in other
countries.
3. So, till what extent a country can exercise its judicial influence in the world will be its
judicial jurisdiction.
4. Indian courts do not tend to address international law questions which is the choice
Indian courts have made, but not in the case of American courts – they are enthusiastic
about discussing matters concerning and impacting international law.
5. There are grounds on which the courts of a state can claim jurisdiction, in criminal
matters, these grounds range from territorial presence of the defendant, to nationality
and domicile of the accused.
6. The discussion of jurisdiction is very hot in the direction of criminal matters arising in
one country and accused in other.
• Civil Jurisdiction
• Two type of distinctions, one is legislature, exec and judicial. Other is civil and criminal.
• Distinction between civil and criminal jurisdiction:

• Distinction between civil and criminal jurisdiction:
1. Civil j
a. in general has been claimed as grounds for prosecution is far wider than criminal
jurisdiction. Quite expansive
b. Other countries’ responses have been gradually muted because of the implication
of high amount of instances to be analyzed and to comment upon on other
country’s policies.
c. Moreover, it is accepted that there are no well defined principles related to civil
law jurisdiction.
d. In US and UK, for the cases of common law jurisdictions, the usual basis in
jurisdiction of civil cases remains the service of writs upon the defendant within
the country, even if the presence is temporary or incidental.
e. The purpose of the stay – does not matter, it may serve a writ and initiate
proceedings. Its basic territorial principle.
f. In continental Europe, where there are more civil law countries, they follow about
habitual residence of the defendant is followed.
g. So it quite expansive and it varies – no well defined principles so as to conform
with the IL principles
h. Common law v. civil law – territorial jurisdiction v habitual residence.
2. Whereas, in criminal jurisdiction, you can find common definite principles to rely upon
to base jurisdiction, with varying degrees of support and of different historic legitimacy.
There are quite a few principles which are well established
• Criminal Jurisdiction - different principles which apply at identifying what kind of criminal
jurisdiction (CJ) will apply in what kind of cases.
1. First principle that you have is the territorial jurisdiction (TJ) which is the most
fundamental principle when it comes to jurisdiction.
a. TJ reflects the principle of sovereignty exercisable by states in their territorial
limits and is indispensable foundation for the application of a series of legal rights
that the state possesses.
b. This is essentially an application of sovereignty that the state already enjoys.
c. All crimes committed within the TJ of the state may come before the municipal
courts and the accused of a particular crime may be convicted or sentenced
accordingly.
d. TJ is not an exclusive one.
e. For example, if someone is found to have been a suspect of a crime and is found
in the TJ of a state that doesn’t necessarily mean that TJ is the only principle that
will apply in the case.
f. If something is qualifying for TJ that doesn’t mean only TJ will apply. There are
others such as nationality, but a majority involves TJ.
g. Usually what the case would be is that the crime will take place in the territory
where the suspect is also found. That’s the usual scenario. But there could be
exception, crime could be committed in one nation and the suspect is in some
other nation.
h. Lotus Case
i. The nature of territorial sovereign criminal acts was first examined in the
lotus case.
ii. There was a French steamer by the name of Lotus which collided with
another boat called __ in the high seas.
iii. Now, the Turkish vessel sank and passengers and sailors died.
iv. Turkish authorities arrested French officer when lotus reached the Turkish
coast.
v. The French officials were charged of manslaughter and France was against
this thing.
vi. Where was the crime committed? In the high seas. To whom does high seas

vi. Where was the crime committed? In the high seas. To whom does high seas
belong? We don’t know.
vii. So in that sense the only way to find out is in which ship this manslaughter
happened because that ship, according to the law of high seas, is an
extension of the territory of the state to which the ship belongs or to
whichever flag is hoisting on the ship.
viii. In that sense, the allegation that France had was valid
1) What they were claiming was that turkey didn’t have jurisdiction to
charge the officials
ix. The case came before the PCJ.
1) The PCJ regarded that a state wasn’t able to exercise its power outside
its frontiers in the absence of a permissive rule of IL but the Court also
said that this doesn’t mean that the law prohibits a state from
exercising jurisdiction in its own territory
2) The Court said that any State doesn’t need to look for a permissive rule
of IL if the crime has been committed aboard with regards to your own
citizens
3) The court was quite broad in its understanding of jurisdiction. So the
territorial criminal principle therefore is not an absolute principle of IL
and by no means coincides with territorial sovereignty.
i. Lotus Judgement has been Overturned By Article 11(1) Of The High Seas
Convention 1958
i. It emphasizes that only the flag state or the state of which the alleged
offender was a national has jurisdiction over sailors regarding offences in
the high seas.
ii. Although jurisdiction is primarily and predominantly territorial, it is not
inevitably and exclusively so.
j. States are free to consent to arrangements whereby jurisdiction is exercised

outside of national territory. State X and Y can enter into an agreement which
essentially has a clause which would say in case of a dispute, the jurisdiction
would lie at so and so. IL doesn’t prohibit ascertainment of jurisdiction.
2. Nationality Principle: NP applies to private interaction but it doesn’t mean that it would
not be applicable to PIL.
a. You will observe the application of NP in PIL in certain cases
b. What is nationality? By virtue of nationality a person becomes entitled to a series
of rights, like voting, issuance of a passport
c. The concept of nationality is imp because it determines the benefits to which a
person may be entitled and the obligations which they must perform. It’s all about
the rights and duties which arise out of nationality which are quite substantive in
nature
d. The problem with NP is that there is no coherent or accepted definition of
nationality in IL
e. Even though you have Private IL as a separate discipline yet there is no coherent
definition of nationality and only conflicting descriptions under different
municipal laws of states are present. Definition of nationality would differ from
country to country
f. Therefore it will be difficult to come up with a uniform definition of nationality.
g. The ICJ in the Nottebohm Case (this was based on state practice) observed and
made a comment on what nationality is.
i. It said, “nationality is a legal bond having as its basis a social fact of
attachment, a genuine connection of existence, interests and sentiments,
together with the existence of reciprocal rights and duties.”
h. In Pol Sci and Socio you will see that the nationality of a person is not essentially
where a person is born or where the person’s parents are. Nationality is more
sentimental, it’s a social fact, it’s about attachment to a nation
i. You might be a citizen of India, but say you lived in Pak so your attachment lies

i. You might be a citizen of India, but say you lived in Pak so your attachment lies
w Pak or your interests might be in some other nation despite being a citizen of
another nation
j. Citizenship is ascertained through an objective form. On the basis of all of this,
there exist reciprocal rights and duties.
k. In law what is important is the fact that from these interests certain rights and
duties arise and these rights and duties are what we are concerned about. In
general the two most important principles upon which nationality is founded are:
first, by dissent from parents second, by virtue of being born in a particular state
l. The evidence of citizenship is usually ascertained through where you are born or
where you parents are.
m. These also overlap with nationality
n. The easiest way to ascertain nationality is to look at jus sanguinis or jus soli.
o. Nationality may also be acquired by the spouse of nationals.
p. Nationality may also be obtained by aliens by residing for a v long period of time
in a nation – this translates to naturalization.
q. There is Article 91 on the Convention on Laws of Seas: Ships have the nationality
of the state whose flags are flying on them. This is in consonance with the 1958
convention on high seas. For example: The ship might have be registered in X,
constructed in Y and is coming from Z but if it flies the flag of A. Nationality of
the ship will be A. Since the flag of A is on the ship, the ship is assumed to be the
territory of A. Conflict of rules: One party may claim this is the territory of
Belgium because the flag of Belgium is flying on the ship, the other can say our
nationals are in the ship, so it’s our within our jurisdiction. Conflict b/w TJ and
NP: You will have a lot of choices to make b/w principles. It’s a matter of
creativity. (In criminal cases, nationality of the persons on ship is more imp.)
• Passive Personal Principle states that a state may try an individual for offences committed
abroad which affected or will affect its interest. This is widely worded. It is dubious.
Although a number of states apply it, but there is no clarity on what kind of interests are
affected or when can it be applied. Various kinds of interpretations. UK and USA are
opposed to this.
• Protective Principle which you usually apply in specific kinds of interests affected or cases.
PP allows the states to try nationals who have committed an act abroad which is deemed to be
a threat to the security of the state. This is narrow and more focused and only talks about the
security of the state unlike the Passive Personal Principle. This is usually applied in cases of
immigration or economic offences. State has to prove that its security was affected.
• Universality Principle: Each and every state has jurisdiction to try particular kinds of
offences. Protective Principle focuses on the issue. Here the focus is on the subject itself.
Universality Principle would apply only in certain category of offences. What are these
categories? Piracy and war crimes to say. This is not exhaustive list, can be something if a
particular treaty says so.
• Congo v. Belgium: J. Higgins has made a v imp observation. Not getting into details because
no time
• Read extra territorial jurisdiction ke under effects doctrine

Commentary//WR acts
27 October 2020 18:45
• State Responsibility - Responsibility of States for Internationally Wrongful Acts 2001

• State Responsibility covered in classes - 52, 53 and 54
• Responsibility
1. Why state responsibility?
a. The state which is the important actor in the International law is made responsible
for its own actions - state responsibility is therefore a fundamental concept in
International law which arises out of nature of the International legal system itself
and it emerges out of the doctrine of state sovereignty and equality of state
b. If a sovereign state is allowed to exercise its sovereignty on others, it also is
responsible for its own actions
c. Whenever one state commits internationally unlawful activities against the
another state, international responsibility is established between the two states so -
breach of international obligation gives rise to a requirement of reparation
d. if there is legally binding responsibility there has to be legally binding
consequences if there is a breach .
2. Relationship between the roles of state responsibility and that of law of treaties
a. Rainbow warrior arbitration case - between France and New Zealand in 1990
i. the arbitration tribunal decided that law related to treaties was relevant but
the legal consequence of breach of treaty (including the determination of
circumstances) that may exclude wrongfulness in the appropriate remedies
of breach, is subjected to the customary law of state remedies
ii. So, in the rainbow warrior case you see that the court is refraining to a set of
customary law on law of treaties which is codified in the articles of state
responsibility
iii. International law did not differentiate between tortious and contractual so
any violation of the state of any obligation of whatsoever origin gives rise
to the state responsibility and the duty of reparation this set of customary
law it was noted that it does not make distinction between the tortious and
contractual responsibility and since there is no such distinction even if a
tort has been committed and it is not out of the contract that there is a
breach even then there would be reparation
b. The Gabčíkovo-Nagymaros project case

i. Reaffirmed this point and said that the determination of whether the
convention is or not in force and whether it has been properly suspended or
denounced is to be made pursuant to law of treaties
ii. So, the very question of breach itself does not necessarily depend only on
law of treaties
iii. And if law of treaties or the treaty does not talk about breach that’s not the
problem as it will then be governed by the customary laws of state
responsibility
• Nature of the state responsibility - The characteristics of state responsibility involves certain
factors:-
1. The existence of International legal obligation in force between two states of
international nature
2. Act or omission which violates the obligation and which is imputable to state
responsible for it; there has to breach of that obligation imputable to state
3. Loss or damage has resulted from the unlawful act or omission.
a. So, without loss or damage there can be no reparation the law of state
responsibility. It would only be invoked when there is loss or damage - very
similar to tortious liability .

similar to tortious liability .
b. There is a breach or it is a continuing breach the law of state responsibility would
invoke .
• The principle of objective responsibility or also known as risk theory maintains the liability
of the state is strict no fault liability
1. Once the unlawful act has been committed by the agent of the state. that state will be
responsible under the International law to the states suffering the damage, irrespective
of the good or bad faith
2. The fact that harm has been caused and violation that is enough to invoke the law of
state responsibility
• The subjective responsibility theory or the harm theory states that the element of intention
(also called as negligence) concerned on the part of entity concerned is necessary before
each state is liable for the injury caused.
1. For example – if murder has been caused in some other territory whether or not mens
rea involved would be relevant according to this subjective theory
2. If there is no mens rea involved if the person killed in good faith in such a case for the
act of this person his or her state cannot be made liable according to subjective theory
3. mens rea becomes v imp
4. the imp case adopting the subjective approach is the Home Frontier and Foreign
Missionary society of the United Brethren in Christ (USA) v. Great Britain (1920)
• Preference
1. Absolute liability
a. Imposing upon the state the absolute liability wherever an official is involved,
encourages the state to exercise various controls over the departments and
representatives
b. If you apply the no fault theory state automatically as a consequences becomes
more responsible + they will be responsible for the acts which are not intended to
be violative of any international law
c. so it simulates with complying the standard of conduct in international relations
and the object of conduct of international relations is better enforced if no fault
theory is applied
d. State responsibility in that sense covers a lot of fields
i. it includes unlawful act of states
ii. the doctrine depends on the link that exists between the state and the
person - this is one scenario where the state violates the norm established
between the states
iii. another scenario would be agents of the state are involved - when the agents
commits wrong and violate the particular promise in such a scenario certain
doctrine applies
iv. state is not responsible for all acts performed by the nationals. It is only
responsible for the acts of the agent’s or the servants of the state. So ,
immutability is the legal fiction, which assimilates the action or omission of
the state to the state itself render the state liable for the damage.
• Article 4
1. Article 4 of the state responsibility provides that the conduct of any state organ shall
considered as an act of the state concerned under international law, if the organ
exercises executive , legislative , judicial or other functions
2. It does not matter as to whatever position it holds in the organization of the state and
whatever its characteristics are
3. organ of central govt or territorial limits is it will be responsible
4. In some of the cases intention of the agent is not relevant
5. Verzil scholar noted in Carey case that the officials have acted to all appearance as
competent officers or organ they must have used power appropriate to official capacity -
if this basic requirement is met, in such a case state would be responsible

if this basic requirement is met, in such a case state would be responsible
6. private individual is not regarded as state responsibility .
7. Commentary
a. “State organ” covers all the individual or collective entities which make up the
organization of the State and act on its behalf.
b. In the Moses case, for example, a decision of a Mexico-United States Mixed
Claims Commission, Umpire Lieber said: “An officer or person in authority
represents pro tanto his government, which in an international sense is the
aggregate of all officers and men in authority.”
c. The article extends to organs of government of whatever kind or classification,
exercising whatever functions, and at whatever level in the hierarchy, including
those at provincial or even local level. No distinction is made for this purpose
between legislative, executive or judicial organs (as affirmed in Salvador
Commercial Company case and ICJ in Difference Relating to Immunity from
Legal Process of a Special Rapporteur of the Commission on Human Rights and
PCIJ in Certain German Interests in Polish Upper Silesia (Merits)
d. It does not matter for this purpose whether the territorial unit in question is a
component unit of a federal State or a specific autonomous area, and it is equally
irrelevant whether the internal law of the State in question gives the federal
parliament power to compel the component unit to abide by the State’s
international obligations - “Montijo” case
e. A State cannot avoid responsibility for the conduct of a body which does in truth
acts as one of its organs merely by denying it that status under its own law.
f. Personal capacity - the award of the Mexico-United States General Claims
Commission in the Mallén case
i. first, the act of an official acting in a private capacity and
ii. secondly, another act committed by the same official in his official capacity,
although in an abusive way.
The latter action was, and the former was not, held attributable to the State
• Article 8
1. Article 8 of ILC draft articles provides that conduct of person and group of person shall
be the act of state responsibility if acting on the instructions of direct control of the state
2. if that is not so; if there is no direct control in such a case state won’t be liable
a. Difficulty arises in seeking to define the necessary state control required.
b. The problem arose in Nicaragua case where the international court clarified and
declare that conduct of the contravenes have to be proven that US had full control
in the military
c. since there was effective control by the military or paramilitary the US military on
these contravenes link was established US and Guerrillas
d. It was sufficient overall control would have been insufficient, effective control is
needed .
3. Commentary
a. Generally , the conduct of private persons or entities is not attributable to the State
under international law. Circumstances may arise, however, where such conduct
is nevertheless attributable to the State because there exists a specific factual
relationship between the person or entity engaging in the conduct and the State.
Article 8 deals with two such circumstances
i. The first involves private persons acting on the instructions of the State in
carrying out the wrongful conduct.
ii. The second deals with a more general situation where private persons act
under the State’s direction or control
b. Degree of control - Nicaragua

b. Degree of control - Nicaragua
i. The degree of control which must be exercised by the State in order for the
conduct to be attributable to it was a key issue in the Military and
Paramilitary Activities in and against Nicaragua case
ii. The question was whether the conduct of the contras was attributable to the
United States so as to hold the latter generally responsible for breaches of
international humanitarian law committed by the contras.
iii. This was analyzed by ICJ in terms of the notion of “control”. On the one
hand, it held that the United States was responsible for the “planning,
direction and support” given by the United States to Nicaraguan operatives.
But it rejected the broader claim of Nicaragua that all the conduct of the
contras was attributable to the United States by reason of its control over
them.
iv. Thus while the United States was held responsible for its own support for
the contras, only in certain individual instances were the acts of the contras
themselves held attributable to it, based upon actual participation of and
directions given by that State. The Court confirmed that a general situation
of dependence and support would be insufficient to justify attribution of the
conduct to the State.
c. The Appeals Chamber of the International Tribunal for the Former Yugoslavia
(Tadic)
i. the Chamber stressed that: The requirement of international law for the
attribution to States of acts performed by private individuals is that the State
exercises control over the individuals. The degree of control may, however,
vary according to the factual circumstances of each case.
ii. The Appeals Chamber fails to see why in each and every circumstance
international law should require a high threshold for the test of control
iii. The Appeals Chamber held that the requisite degree of control by the
Yugoslavian “authorities over these armed forces required by international
law for considering the armed conflict to be international was overall control
going beyond the mere financing and equipping of such forces and involving
also participation in the planning and supervision of military operations”.
iv. The majority considered it necessary to disapprove the ICJ approach in the
Military and Paramilitary Activities in and against Nicaragua case
1) But the legal issues and the factual situation in the Tadić case were
different from those facing the Court in that case. The tribunal’s
mandate is directed to issues of individual criminal responsibility, not
State responsibility, and the question in that case concerned not
responsibility but the applicable rules of international humanitarian
law.
• Article 9
1. Article 9 of ILC provides that if the person or group was exercising the government
authority in the absence of official authority
2. In personal capacity state would not be liable at all where the government authority has
acted in a good faith and without negligence - the general principle is of non liability
for the action of, specifically for rebels causing loss
a. so , Syrian nationals causing some kind of loss or damage of the property of
another nation in the name of terrorism state wouldn’t be liable if state is acting on
the good faith
b. generally you will notice that the nationals who are alleged to be involved in the
terrorist activity the allegation is that the states have not acted in good faith
c. So, India for example would allege that Pakistan is not acting in good faith
because it cannot curb terrorism in its own country and when its citizens and
citizens of Pakistan then moves to India there is loss of property at least there is

citizens of Pakistan then moves to India there is loss of property at least there is
claim of lack of good faith Pakistan cannot make a claim of negligence .
3. Commentary
a. Article 9 establishes three conditions which must be met in order for conduct to be
attributable to the State
i. first, the conduct must effectively relate to the exercise of elements of the
governmental authority
ii. secondly, the conduct must have been carried out in the absence or default of
the official authorities, and
iii. thirdly, the circumstances must have been such as to call for the exercise of
those elements of authority
• Principles like promissory estoppel

1. states that consent are not make liable for such acts which may be legal in the eyes of
the law. They have consented and therefore the other state cannot be made liable for
such act at least under the law of state responsibility
2. he state can be made liable although for the violation of any convention or treaty but not
generally for the violation of state responsibility
3. so , the scenario changes state acknowledges a conduct as its own and if state consented
to the act of other state - wrongfulness is precluded if it is within the limits of the
consent
4. for example – troops from one state are send to another at the request of the later so , if
troops have moved from one place to another at the request of the state whatever
happens as a consequences of such movements of the troops state cannot be made
liable for it wrongfulness is precluded
• Self defence
1. You cannot make the state liable for the self defence
2. this does not mean all wrongfulness is precluded since the principle related to human
rights
3. humanitarian law have to be respected even though you are acting in self defence
4. self defence cannot be an act in the first instance - it has to be the reaction
5. it has to be internationally wrongful act secondly
6. the injured state must have called upon that state - the injured state without acting
should first approach the state which has caused the wrong and it should persuade that
state , claim for reparation should made first before self defence
7. The wrongdoing has to be assessed on the basis of that assessment self defence can be
made
8. you cannot forever continue with the self defence as soon as the responsible state
complies with the obligation
9. So, if nation acts in the self defence for an act which is misunderstood to be wrongful
act in fact it is act of god or beyond the power of the state; such a scenario there is
scope for address the misunderstanding because self defence is request for the remedy
of the wrong but since it is force majeure act
10. Article 42 of ILC

a. is also relevant - it stipulates that state is entitled as an injured state to invoke the
responsibility of another state which the obligation is owed
b. responsibility not only arise in one state other state also arise when several state
are injured by the same act each can invoke the responsibility they can do
individually or collectively .
• Reparation
1. It is a consequence of internationally wrongful act under state responsibilities
2. Reparation must wipe out all the consequences of illegal act and reestablish the
situation which would have earlier existed; similar to torts

situation which would have earlier existed; similar to torts
3. The obligation of reparation is irrespective of the domestic law
4. If reparation has to be paid in international law it has to be paid even if domestic law
says otherwise .
5. Article 36 (2) states that the compensation provided should cover any financial
accessible economic loss which belongs to MNCs - MNCS will loose that particular
property
6. but also the profit the aim (reading 36 (1) and 2), together compensation is usually
assessed on the fair market value - changes from case to case what formula you would
use
7. satisfaction constitutes the third form of reparation would include official apology ,
formal acknowledgment of the act (first form of reparation is restitution second
compensation and third form is satisfaction)
• Injury to national citizens

1. The doctrine of state responsibility in injury to the national citizens rests on two pillars
a. one the attribution of one state of the unlawful acts and omissions and its organs
i. it can be either unlawful acts and obligations
ii. Nationality is quite important to questions of which state is responsible for
what kind of individuals - it plays an imp link between individual and the
state
iii. If you are a citizen of nation you will have certain rights and benefits
iv. A state is under the duty to protect its nationals state might take a issue
before international court representing that individual
v. Though for diplomats the case is diff - they are protected by international
law
vi. So, essentially state needs to protect but there is no obligation for nationals
it is up to what state chooses to do
1) There is no rights as such with respect to nationals are concerned
2) Nottebam case - there needs to be link between the state and the
nationals and as far as corporation is concerned there should be
tangible link.
3) When it comes to ships the international tribunal MV shaiva case that
the ship and every person in that ship has an obligation it is an estate
linked to the flag state it does not matter ship had 100 individuals
with 100 nationality - the flag which is hoisted in that ship that matters.
• While thereare certain conventions and treaties regulating diplomatic relations like the
Vienna convention of diplomatic relations, it can be waived by treaty stipulation if treaty says
that whatever happens to nationals of one country that state won’t have any claim if two
countries have decided in that style so there wont be any claim
• The developed state or the west has argued historically that there exists minimum standard of
protection of foreign nationals that must be upheld irrespective of how the state treats its
own nationals the state needs to keep the alien as its own nationals
• India very recently said that one of the minister commented that Kashmir US was trying to
interfere; minister comment was this is the internal matter of India the human rights issue in
Kashmir differs from country to country and universal notion cannot be applied to third
world country minister said. Third country argues that there is no minimum standard as it
changes we have our own treatment to the nationals and aliens .
• Another issue that usually arises is that with regards to protection of nationals + state
responsibility and protection of nationals and property
1. the expansion of western economy - part of huge plan to for the developing countries
2. debt is offered by western especially in 80’s rest of the world 90’s in India
3. these property belonged to western corporations after the change of the regime many
socialist government came into the power and different other kinds of governments

socialist government came into the power and different other kinds of governments
decided to take over the property
4. expropriation of property belonging to first world corporations in assessing the state of
international law with regard to expropriation of property with regard to aliens rises -
confronted with two opposing objective
a. on one hand the capitalist requires some measures of protection and security -
therefore they will invest abroad protection could be bilateral protection it could
be the arrangement that one country has with the another country but largely as
overarching principle that there should be norm to understand
b. At the other hand the capital importing countries are vary power from the foreign
investments
There has to be balance between these two interest - one the interest of the foreign
investment and interest of the state where such investment is made
That’s where the law needs to be made on such expropriation of foreign property
It has to follow certain due process and certain norms when property is expropriated
• Expropriation involves taking of the property- it may not necessarily be the physical taking
of the property it could be any action may lead to the direct possession of assets at the later
time.
1. Indirect nationalization the norms are clear at that point line was drawn - how u explain
expropriation
2. what appropriate compensation would be these are governed by bilateral agreements
3. these agreements are introduced to encourage the investment there has been remarkable
expansion in the bilateral treaties
4. The concept of investment is not just the money or investment of land it could be a lot
of different things
• Draft articles on state responsibility

1. principles governing when and how a state is held responsible for a breach of an
international obligation.
2. Rather than set forth any particular obligations, the rules of state responsibility
determine, in general, when an obligation has been breached and the legal consequences
of that violation - hence secondary rules that provide remedies for breach of primary
rules
3. They do four main things - establish
a. the conditions of actions to qualify as internationally wrongful
b. the circumstances under which actions of officials, private individuals and other
entities may be attributed to the state
c. general defenses to liability and
d. the consequences of liability.
4. Largely codified in Draft Articles on the Responsibility of States for Internationally
Wrongful Acts ("Draft Articles") by the International Law Commission (ILC) in August
2001
a. These articles are general in coverage, they do not necessarily apply in all cases.
Particular treaty regimes, such as the General Agreement on Tariffs and Trade and
the European Convention on Human Rights, have established their own special
rules of responsibility.
• Internationally wrongful acts - According to the Draft Articles, an internationally wrongful

act must
1. be attributable to the state under international law
a. Before a state can be held responsible for any action, it is necessary to prove a
causal connection between the injury and an official act or omission attributable to
the state alleged to be in breach of its obligations
b. The state is responsible for all actions of its officials and organs, even if the organ
or official is formally independent and even if the organ or official is acting ultra
vires

vires
c. Persons or entities not classified as organs of the State may still be imputable,
when they are otherwise empowered to exercise elements of governmental
authority, and act in that capacity in the particular instance
d. Persons or entities not performing public functions may equally be imputable, if
they in fact acted under the direction or control of the State.
e. Where there is a breakdown of normal governmental authority and control, such
as in so-called "failed states", the actions of those acting as the "government" in a
de facto sense will be acts of the state.
f. The acts of an "insurrectional or other movement that becomes the new
government of an existing state or succeeds in establishing a new state" can also
be attributed to the state
g. Also applies when a state acknowledges and adopts the conduct of private persons
as its own.
h. Private bodies - most rules state responsibility involving private acts already arise
under primary rules. For example, environmental and human rights agreements
require states to prevent abuses by private parties.
2. constitute a breach of an international obligation of the state

a. Defenses - include
i. Force majeure (Article 23)
ii. Distress (Article 24)
iii. state of necessity (Article 25)
iv. counter measures (Articles 49-52)
v. self-defense (article 21) and
vi. consent (article 20).
b. Consequences of breach - two types of legal consequences

i. It creates new obligations for the breaching state, principally, duties of
cessation and non-repetition (Article 30), and
ii. A duty to make full reparation (Article 31)
1) Article 33(1) characterizes these secondary obligations as being owed
to other states or to the international community as a whole
2) Articles indirectly acknowledges in a savings clause also that states
may owe secondary obligations to non-state actors such as individuals
or international organisations
3) Reparation could involve
a) Restitution
b) Compensation
c) Satisfaction
c. Also, the articles create new rights for injured states, principally
i. the right to invoke responsibility (Articles 42 and 48) and
ii. a limited right to take countermeasures (Articles 49-53)
d. Article 48 - provides that certain violations of international obligations can affect
the international community as a whole such that state responsibility can be
invoked by states on behalf of the larger community; in accordance with ICJ's
celebrated suggestion in Barcelona Traction that some obligations are owed erga
omnes, toward the international community as a whole.

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10 November 2020 08:56

International Law Page 1

International Law Page 2

• Brownlee and Malcom Shaw and Openheim are nice books

• Some theoritical fun:-

Definitions of International Law

b. Rules: reliance on rules is a positivistic influence - these are legally not

International Law Page 3

• Realists influence too so international law moving past straightjacket of positivism -

• Random Information : Customary rules and treaties mentioned in Oppenheim's definition

International Law Page 4

• Reading : Dixon - Relevance of International Law

• Section One : Relevance : Answer to Question One

2. H Waldock's idea : International Law a servicable instrument to carry international affairs

5. S Scott : International Law sustaining an international political order

6. T Bingham : International Law bringing a semblance of punishment

International Law Page 5

c. States if problems have to solved - rules need to be internationally agreed//implemented//enforced

• Answer to Question Two : No exec body to enforce law

d. There IS an executive - To some extent, there is an executive presence in international law

International Law Page 6

c. Bosnian Genocide case - made effective control the current law

• Section Two : The international community and international law

International Law Page 7

International Law Page 8

• Reading : Higgins : Nature of International Law

• Two points describe the nature of international law

• What is International Law?

International Law Page 9

 Judges Fitzmaurice and Spender stated that, "We are not

International Law Page 10

 After four years, a different choice was made by the court:

James Crawford commented on this saying that the only reason

3) Higgins says that they came from a very hardcore positivist

International Law Page 11

• To whom does International Law Apply?

International Law Page 12

• Reading : Dworkin : Basis of International Law

• Theme of the reading:

• First, why did people doubt if there was any I law?

b. It was a debate amongst positivists too : Who creates law? :

International Law Page 13

c. What even constituted as a "civilized" state?

b. Therefore, he asks us to imagine a court - a hypothetical global court coupled with

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c. This formulation of theory of International Law could have these decision to be

2) In fear that their own conception(or intended interpretation) of law

ii. If the theory is not general accepted, is it impractical and wrong?

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• Reading : Baxi : Third World Expectations from International Law

• Stelwart of TWAIL authorship in India. What is the TWAIL authorship?

• What is 'third world'

ii. Third world serving as a tool : a vehicle/vessle/visage for world domination

iii. Third world as insurgents/outlaws: might be seen as insurgent/revolting

iv. Third world as an struggle against universalization : through their(as

 Third worldism then comes across as this resistance against the

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d. It makes international law a negotiating place between the radical popular

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• Hence literature around third world is also scattered in various accounts