PUBLIC INTERNATIONAL LAW NOTES

Blogs:

EJIL Talk

Opinion Juris

Just Security

Introduction

Domestic/Municipal Law: Laws and rules that govern the relationship between the state and the
individual. Eg: IPC, Hindu Marriage Act.

International Law: Rules and regulations that govern the relation between sovereign states and
their obligations.

Public Intl Law: Rules and regulation that govern the relationship between states.

Relationship between domestic law and international law: monism and dualism

Monoism:

Dualism:

4th July 2023

Jurisdictional Foundation of Intl Law

Natural Law Understanding

According to the natural law school, law had a divine origin. As humanity progressed, it came up
with certain rules of conduct which had religious and moral underpinnings. All these rules
revolved around the concept of justice. There are different understandings of the concept of
justice. It varies from time to tome and person and person. It depends on a number of things, like
religion, morality, righteousness, etc. All these affect our understanding of justice. But, all these
underpinnings are vague and ambiguous. It makes these concepts abstract. This is why; there are
different interpretations of justice. In general, there is no scientific accuracy or criterion for
arriving at a unitary meaning of justice. We rely on different things including logic etc. Eg:
murder example- prevention on basis of moral rather than punishment.

Natural Law & International Law

incomplete, inconsistent, abstract.

Vitoria and Grotius

We have moved from natural law to positivism. Natural law was based on idea of religion.
Grocius extended it and said that by defining justice we focus on some abstract things like
abstract, morality. International law was ruled by natural law, it has some positive outcome also.
Natural law tries to censure the brutality - they can only fight for just reason, just war. One such
cause is religion. This is how natural law helped international law at that point of time. This
version of natural law is not relevant today. We cannot keep room for vagueness in international
law. Natural law suffers from its own deficiency. We wanted to make it more certain and
consistent. This was achieved by estbling sovereign.

Positive Law Understanding

Hobbes Definition

It is unclear as to when the society moved from a state of anarchy to a lawful society. The very
first characteristic of a lawful society was handing over the powers by the individuals to a
sovereign. The sovereign was not bound by anyone, The rights and obligations were decided by
the sovereign.

Hobbes talk about transition of society from lawless to a society based on law and order. In that
society, people also surrendered all of their rights to sovereign. The sovereign will decide who
will get what rights. Applying this to international law- this is not good. We don’t know when
international law got transformed. There was not a single sovereign in international. Every state
is sovereign in itself. No state is a supra state. No state makes laws for other states. They make
law for their state.

This idea cannot be applied to the international law since there is no authority/sovereign. The
lawful societies, entered into a commune with other lawful societies.
Austin’s Definition

The law, in order to be proper needs to have some characteristics- Command by sovereign for the
inferiors – failure of which would lead to a sanction.

At that time, 16th – 17th century, when these ideas were being discussed, there was no sovereign
at the international level.

Austin thus argued, that international law is a positive morality. It was also called law improper.
Acc. To him, even at points when states deviate from the international law, at max their
reputation is at stake thus making it a moral. The states follow the rules as a state of fashion and
metaphor and try to maintain consistency in their actions (customary law).

State’s actual behavior is also a form of international law.

Kelsen’s Understanding

Applying this to international law- there is no grundnorm in international law. In India, basic
structure of the constitution can be considered as grundnorm. This is true for our society where
constitution is sovereign. But there are states where dictator or religion is a sovereign. So, where
we will relate the grundnorm there? Kelson was purist. Law is located in the psychological belief
of people. Grundnorm was to be free from any form of impurity like abstract things. For
international law, consensus (consent) is the grundnorm. It is pacta sunt servanda- treaties are to
be respected. For kelson international law was customary law. Customary law means states
practices, actual behavior of state. For us today, international law is custom, treaties etc. state
practice is reflective of the consent of the state. Pacta sunt servanda acc to him is also one of the
customary rules. He later said that pacta sund servanda is not grundnorm but one of rules of
customary practices.

HLA Hart’s Understanding

The international society is a primitive legal society. The legal system consists of primary rules
and secondary rules. The primary rules deal with the rights and liabilities of the citizens. The
secondary rules are power conferring rules.

Eg; Self defense and use of force

Self defense is a primary right in international law. The secondary rules in international law are
absent.
All definitions are insufficient as international law had not developed till then.

1648: In the late 16th century, treaty of Westphalia was signed which gave recognition to the
nation states.

Realist School of Thought

They believed that there is nothing like international law. The states are only motivated by state
interest. It was given by Hans Morgenthau and Henry Kissinger.

International law has no primary or decisive role/influence on the conduct and policies of the
states, which are primarily guided by their own national interest and influenced by considerations
of power, more than by anything else.

Eg: China’s invasion in the Indian territory conflict

Rohingya Muslim national security conflict

5th July & 6th July 2023

Concept of International Law

Two important features of international law:

1. Consent

It depends on the concerned state to sign, ratify the treaty and be bound by the rights and
obligations of the treaty. The law is not imposed on any country. This is not the case for national/
municipal law.

Yet, there are few laws of international laws, which the states are bound by and have no choice.

Eg: genocide- crime against humanity. Crimes which are beyond legal imagination. It is so
unnatural for a human being to commit these crimes. For such things, the rules of international
laws are followed.

PCIJ Lotus Case said that;

“International law governs relation between independent states, the binding rule. The rules of
law binding upon states therefore, emanate from their own free will as expressed in conventions
or by usages generally accepted as expressing principle of law and established in order to
regulate the relation between these co-existing independent communities or with to achieve
common aims. Restrictions upon the independence of the states cannot therefore be presumed.
2. Sovereignty

Sovereignty concept- jean maunde, hobbes, Austin, -- veil for such crimes.

3. Reciprocity

Terms and conditions reflect these.

Eg: Extradition Treaty

Definitions of International Law

Oppenheim: Law of Nations or international law is the name for the body of customary and
conventional rules which are considered legally binding by civilized States in their intercourse
with each other.

Civilized States: European states are included in civilized states. Other states were called
Barbaric states. It also justifies oppression.

Starke: International law may be defined as that body of law which is composed for its greater
part of the principles and rules of conduct which States feel themselves bound to observe, and,
therefore, do commonly observe in their relations with each other, and which includes also:

a. the rules of law relating to the functioning of international institutions/organisations, their

relations with each other, and their relations with State and individuals; and

b. certain rules of law relating to individuals and non-State entities so far as the rights and
duties of such individuals and non-State entities are the concern of the international
community.

Analysis:

In this definition, the physical act is conduct. The psychological fact is the fact that states feel
themselves bound to observe.

Schwarzenberger: International law is the body of legal rules which apply between sovereign
States and such other entities as have been granted international personality.

This definition has widened the scope and ambit of international law. Includes non state actors as
well. Eg: MNC, Civil Society Organizations, etc.
Civilized states  States  Sovereign States & Other entities

European Version of International Law

Singapore Ship Case

Three Dutch ships were lying close to Singapore coast. After three days, they see a Portugal ship,
larger in size- called St. Catarena. This ship was so rich, it could cover the entire economy of
Britain. The Dutch attacked this ship, and returned to their homeland. They were under the
control of Dutch East India Company. The shareholders in DEIC were ultimate holders of the
wealth. They divided the entire health via the court of admiralty. This claim can be contested as
well. People from Holland were contesting these claims on the stolen ship wealth. 1% of the
wealth went to the person who stole it. Questions and objections were raised and the matter went
to the court. The corporate lawyer (Grocitus) hired had to justify the acts of the company. He
reasoned – since the Portuguese attacked the right of freedom of trade in open sea. They had the
right to take that money. This signifies that war was seen as a legal option to solve a feud in the
16th century.

The entire journey of international law is about moving from this war and violent settlement to
peaceful settlement of disputes.

Eg: These days the disputes are settled by organizations like ICC. ICJ, WTO, etc. the major
objective of all these organizations is peaceful settlement of disputes.

Outlawing War:

Gunboat diplomacy: Us wanted to trade with Japan. A UD official goes on a fleet to Japan. The
message was clear- either do trade or give up. International law is changing this perspective,
from war to peaceful settlement of disputes.

But, after the First World War, the countries wanted to outlaw law. For the same purpose,
Kellogg Brand Pact was signed in 1928. Also called Paris Pact, it stated four articles. It stated
that the states would renounce war as a matter of policy. A number of countries signed it-
Britain, France, India, etc. The irony of the fact is – all these states were preparing for a war.
There were a series of attacks after this. This treaty failed yet succeeded in a way. In today’s
time, war has been limited to a large extent.
Pre-emptive self defence is an emerging concept. It is traced back to Taroline Deaths. In case of
eminent danger, and no opportunity to take help- then force can be used in preemptive self
defense.

7th July & 8th July 2023

International Law from Global South Perspective

1. Eurpoenan western

2. Communist

3. Third world : Latin American, African, Asian 120 members – heterogeneous societies. They
were not common in their attributes (cultural and economic) – but what was common is – they
were struggling with injustices and had emerged from the garb of colonialism.

Third world states did not want to align with any of the groups and thus chose non alignment.
Within third world also, there is a first world.

Legal Contribution of NAM

UN institution came – gave sovereignty yet subjugated.

Group of 77 formed during UNCTAD- did not form a group.

Economic Subjugation

Didn’t want them to join soviet bloc—agreed to their demands at un

Criticism:

TWAIL exists only in the minds of a few scholars and lawyers.

Mohommad bedjaoi : judge at icj for 20 years- advocated twail.

Three Objectives:

1. Deconstruct
2. Alternative Vision

3. Economic injustices

Causes

1. Independence of New States

Sudden and unanticipated rise of developing countries economic and political power. Now, the
bargaining capacity of these countries has increased. For eg: the middle east oil embargo of
1972-73 resulted in oil price increase and created energy crisis globally.

2. Economic Subjugation

Contradiction amongst different international law: NIEO and Right to Self Determination.
Economic trade rules were already in place by treaties. These had to respected keeping in mind,
the pacta sunt servanda. But right to self determination and NIEO stood contradictory to these.

PSNR was precursor to NIEO.

3. Role of Security Council

The third world states were suffering, the UN did not take any action in these states. There was a
genocide in Rwanda, Yugoslavia. It seems that the UN was not fulfilling the purpose it was set
for. It did not take action on peace and security.

4. Disintergration of USSR

5. Multilateralism

By 1990s, the world thought that they have revived the UN. It was dormant initially. After these,
the UNSC established ICTY and ICTR – as ad hoc arrangements for these. We wanted a
permanent adjudicating forum – for which the Rome Statute was discussed and ICC & ___ were
established. This was the wave of multilateralism. Multilateralism progressed for trade, human
rights, settlement of disputes, etc. TRIPS, GATT developed. These developments were taking
place in different institutions.

Other institutions like ICC were established along with a number of judicial forums. This greatly
influenced the international relations.
6. Globalization

Downside of globalization:

1. employment

2. widened the gap between rich and the poor

7. 9/11

9/11 had a great influence particularly in the concept of sovereignty. The idea that non state
actors should not target a sovereign state developed. US violated one of the basic principles of
international law- not interfering in the domestic affairs of any other sovereign nations.

With all these developments, there was a wave of multilateralism.

Treaties are of three kinds:

- Bilateral (2 states)

- Multilateral (more than 2 states)

- General (UN)

In the later part of the century, multilateralism was replaced by bilateralism. Multilateralism got
a backward step while bilateralism flourished. A number of countries have entered in bilateral
agreements for prosecution of citizens of another state. Moving forward, we are coming back to
bilateralism which has happened because of populist government.

UN Resolution 1803 of 1962

“Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public

utility, security or the national interest which are recognized as overriding purely individual or
private interests, both domestic and foreign. In such cases the owner shall be paid appropriate
compensation, in accordance with the rules in force in the State taking such measures in the
exercise of its sovereignty and in accordance with international law. In any case where the
question of compensation gives rise to a controversy, the national jurisdiction of the State taking
such measures shall be exhausted. However, upon agreement by sovereign States and other
parties concerned, settlement of the dispute should be made through arbitration or international
adjudication.”
The colonizing states did not oppose this. But they did oppose NIEO provisions.

Charter on Economic Rights and Duties

13th July 2023

Populism

- Consensus based
- Advocated for bilateral arrangement
- Divides its people into ‘pure’ group and takes care of this,
- These have been suffering from elitist.

Populism is not a separate ideology. It develops on the basis of ethnicity, race, religion, etc.
There are two classes of people – Pure & Elitist. The left governments also are populism.

For example:

i. In India, the Hindus are pure. The govt. in power has enlisted the ethnicity and religious
feelings of these pure people.

ii. International Intervention

In India, the existence of international law has not been negated. CAA protest – UNHRC
intervening.

iii. Jadhav Case:

The government used international law because it was a target against Pakistan- the sentiment of
the entire population against Pakistan.

iv. Balakot Strike

In 2019, Indian Air Force attempted a non military preemptive strike. India justified this use of
force by saying Pakistan is unable and unwilling to control non state actors. It is arguable
whether such actions would be justified. Preemptive Self defense against a non state actor
working from sovereign states – is still debated among various scholars. Similar things are
happening from Chinese side, but the government is not doing anything.

In conclusion, the Indian state is not a populist regime but there is a populist approach on some
areas of international law.

Sources of International Law

The prediction of a state’s behavior is predicted on the past practices of the state.

In international law, we have horizontal system. Every state is sovereign in it and decides the
rules it has to follow.

One such practice comes from custom. Customs are practices backed by opinio juris.

In order to avoid ambiguity, the international law is codified in the form of treaties.

Apart from these, general principles of law have come up. General principles are those laws
which are common across different legal systems. Eg: estoppels, repatriation, etc.

Judicial decisions (subsidiary)

Material Sources: make corpus of international law – custom, treaties.

Subsidiary Sources: Fact as evidence to the establishment of material sources.

Article 38 of ICJ

International Law Commission task, examples of treaties, aims ilc draft conclusion on
identification of customary international laws 2018 with commentaries.

What is a treaty

Wto a treaty

Vclt

War guilt theory

Sources of International Law Road Map

1. Article 38(1)

2. Customs

: State Practice

: Opinio Juris

: Types of Custom : General Customs, Regional Custom, Jus Cogens, Preemptory(VCLT)

: draft conclusion on identification of customary international laws 2018 with commentaries.

3. Treaties

: Right to Passage Case (India & Portugal)

4. GPL

5. Subsidiary Sources

UNGA resolutions , etc.

There are certain state practices that are not included in the customary international law. For
example: providing aid to any victim state. This is because there is no legal obligation for the
same.

Why do we need sources of International Law

International Legal System & Municipal Legal System

In MLS, one can locate the source of law, content of law, legislative statute, etc. However, this is
not the case for ILS. For example: In the case of MLS, the source can be traced to the
Parliament. Such a system is called vertical legal system (apex body out of which all other
organs of govt. derive power). In International law, there is a horizontal system. It is a consent
based system based on the principle of reciprocity. The state’s consent decides whether to follow
a particular law or not. In international system, different kinds of state make it difficult to agree
on a particular form of govt. at the international level. This becomes problematic to locate the
source of law.

Article 38 of the International Court of Justice is the most authoritative source of international
law. The application depends on a number of things, including the state’s consent and type of
govt. This is because it is a primary organ of UN.

There are different forums in international law. For eg: ICJ, DSB, ICC, ICSID, ITCLOS, ECHR,
etc. All these apply different laws but they rely on treaties and customs.

Article 38(1), ICJ

1. The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.

Schwarzenberger has categorized these into –

a. to c. 

: law creating

: form the concept of law

:create rule of law.

d

: law determining agency

: helps in establishing other three sources.

: writings of highly qualified scholars

: Grotius on freedom of sea (high seas)

: principle of non refoulment

: provides the evidence and process of formation of international law

This distinction is not clear and a number of times overlap.

Asylum case

North sea continental shelf case

Anglo-norwegian case

SS Lotus case

17th July 2023

Sources

1. MLS ILS Characteristics

Horizontal System

Consent based system

No codification.

2. Custom

There are two elements of customary international law;

- State Practise
- Opinio Juris

The state is legally obligated to do so and thus behaves in such a manner.

The term opinion juris was used by a French scholar Francois Gery. In order to make a
distinction between state practices followed as morality and those under usages- legally
obligated. It is the feeling that a state is bound by some legal rules.
General Practise (material fact) and accepted as law (psychological fact)

What falls under state practice?

State is a fiction and has no legal understanding of its own. The state takes various decisions
through its agents. These people take decision on behalf of the state. We need to make a
distinction between what a state does with a legal obligation, and others done as a moral
obligation. Their can be a number of reasons i.e. courtesy, repetition, in good will. Eg: providing
protection pt diplomats- done as a matter of obligation, not courtesy.

Which practice will be counted as state practice?

“Article 4: Conduct of organs of a State [State Responsibilities by ILC]

1. The conduct of any State organ shall be considered an act of that State under international
law, whether the organ exercises legislative, executive, judicial or any other functions, whatever
position it holds in the organization of the State, and whatever its character as an organ of the
central Government or of a territorial unit of the State.

2. An organ includes any person or entity which has that status in accordance with the internal
law of the State.”

Whatever the mentioned organs under their full capacity, becomes the practice of state. Example:
diplomatic acts.

What is a state?

The concept of state practice is criticized. State actors are dominant in a state. But, even non state
actors highly influence law making in the state. Eg: Narmada Bachao Andolan, Vishaka, etc.

Problems

Instant CIL: No time limit to form state practice. Can have them instant as well.

18th July 2023

To bring certainty in the understanding of international law is the main aim of positive
understanding of law. It is also to predict and trace the behavior of the state.

Article 38(1) talks about 2 things- state practice accepted as law. “Accepted as law” becomes
difficult to understand.

Article- accelerated formation of Customary International Law

De Visscher- he gives eg of field, as the path develops in the field, same way customary
practices do.

Similarly, the United States and Soviet Union were pioneers of early space law since they were
the first States to be capable of such flight.

Truman proclamation- now our sovereignty extends beyond three miles, to extract oil from the
ocean, other states could have protested but did not bc these states were in a position to dominate
the field of oil exploration.

Concept of state pioneers- (the first State to initiate a new practice) have no guarantee that their
action will actually lead to the formation of a binding custom. Indeed, the response may be a
repudiation of the claim, as in the case of Libya’s protest of the un-consented apprehension of
the al-Qaeda operative.

Constitutional moment- we need to understand at what stage int. customary law is formed who
are dominant actors, Marxist scholars say there are only dominant actors, and state practice is the
practice of the dominant states, one such dominant actor is MNCs, everything is traced back to
the sovereign will of the state

Draft conclusion on customary international law

State practice can be verbal acts, or implied.

Mou, etc – verbal

General v constant and uniform practice-

Instant customary law- space laws by soviet and USA, space is the common heritage of
mankind,

Now for customs, we do not have the concept of time immemorial, like we used to trace it back
to 1189.

Bin Cheng- supported rise of customary IL for space law developed in relatively short period of
time.
EEZ newly developed

Use of force- still contested as customary IL

Asylum case 1950- court said that the customary rule must be in accordance with a constant and
uniform usage practice by state in question however the court had made clear that perfect
consistency is not required, depends on facts and circumstances of each case.

Fisheries case-

Read this article BKL

Nicaragua case

Compensation- divide b/w 1st world countries and 3rd world countries, just compensation.

Page 79 of MN Shaw textbook; eg

19th & 20th July

Customs ending. In PIL READING NOTES

Conclusion 11

“A rule set forth in a treaty may reflect a rule of customary international law if it is established
that the treaty rule;

a. codified a rule of customary international law existing at the time when treaty was concluded;

b. has led to crystallization of a rule of customary international law that had started to emerge
prior to the conclusion of the treaty.
c. has given rise to a general practice that is accepted as law (opinion juris), thus generating a
new rule of customary international law.

2. the fact that the rule is set forth in a number of treaties may, but does not necessarily indicate
that the treaty rule reflects a rule of customary international law.”

Eg: Principle of Non refoulment, jus cogens norms, immunity and access to, principle of
humanity in roman statute, pacta sunt servanda in VCLT,

Resoltuons of intergovernmental organsiations can be used to establish custmary international

law.

21st July, 2023

CA1: Introduction (Theory Based)

Customary International Law (Application Based)

Exceptions (Persistent Objector & Regional And Local Customs- Particular Customs-
Conclusion 16) & Elements (Subjective & Objective)

Cases

Ways to establish state practice – conclusion 6

Significance of ILC Articles & Conlcusions

- Establish opinion juris

- Subsidiary source of intl law
- Material Sources of Intl Law
- Establish evidence of state practice

When they become treaties, they become formal sources of international law.

The International Law Commission was established by the General Assembly, in 1947, to
undertake the mandate of the Assembly, under article 13 (1) (a) of the Charter of the United
Nations to "initiate studies and make recommendations for the purpose of ... encouraging the
progressive development of international law and its codification".

Persistent Objections cannot be made to any of the preemptory norms of international laws.
Erga ominus concept- genocide in a state, other states need not consider the concept of consent
and sovereignty of the said state.

Conclusion 16

Eg: South Asian States regional local – objective and subjective element of CIL to be established
individually.

Examples of Particular Customs:

i. Asylum Case

Peru issued an arrest warrant against one of its citizen “in respect of the crime of military
rebellion”. 3 months after the rebellion, hefled 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.

The Court held that there was no expressed or implied right of unilateral and definitive
qualification of the State that grants asylum under the Havana Convention or relevant principles
of international law (p. 12, 13). The Montevideo Convention of 1933, which accepts the right of
unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was
not ratified by Peru. The Convention, per say, was not binding on Peru and considering the low
numbers of ratifications the provisions of the latter Convention cannot be said to reflect
customary international law.

The Court held that Colombia did not establish the existence of a regional custom because it
failed to prove consistent and uniform usage of the alleged custom by relevant States. The
fluctuations and contradictions in State practice did not allow for the uniform usage (see also
Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of State
practice). The court also reiterated that the fact that a particular State practice was followed
because of political expediency and not because of a belief that the said practice is binding on the
State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary
law

ii. India & Portugal Case

 24th July 2023

Persistent Objector

Must be on clear terms and unambiguous.

Internationally communicated

Jus Cogens Norms Von Lowe

 These are an exception to rule of persistent objection.

 Article 53 of VCLT defines Jus Cogens as a norm accepted and recognized by the
international community of states as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general international
law having the same character.
 The burden of proof lies with the international community of states.
 The definition of international community of states has not been given.
 ILC Draft Articles on Jus Cogens Norms
 Examples: Prohibition on genocide, slavery, racial discrimination, use of force, crimes
against humanity, etc.
 Doubtful Elements: racial discrimination, use of force, Permanent Sovereignty over
Natural Resources
 These are some moral principles or logical necessities. These are logically necessary
because these norms like natural laws are necessary for the survival of the mankind. All
of us are vulnerable, so are states. There is no one superpower and we do not live in a
unipolar society. Since time immemorial, nation states have engaged in treaty formation.
E.g.: Sandhi in Ancient India (Kautilya talked about peace treaties to avoid war). This is
why such arrangements are necessary. Justice and morality have not been defined, but
these need to be protected at the international level.
 The definition in the VCLT leaves the judgment in the hands of international community
of state as a whole, a concept that is not defined although the disputes over the question
of Jus Cogens on treaties may ultimately be referred to the International Court of Justice.
 Paradox: In the formation of customary international law, consent plays an important
role. But when these general principles of customary international law are further
crystalised. Derogation is not allowed.
 These ultimately rest with the legal consciousness of the international community.
Treaties
 Article 38(1)A
 Treaties are a better source than CIL because:
- Codified
- Unambiguous
- Suits the needs of the society
- Subject to consent of the state- which is not possible in formation of general customary
international law.
- Like contracts.
- Express obligation
 In international society, obligation comes from two sources: Treaty/ Agreement or
Commandments
In commandments, there is a presupposition that there will be a person giving commands
(sovereign). But in international law, we follow a horizontal system and there is no
sovereign/ commandments.
 Treaties and agreements are known by different names: Conventions, Pacts, Exchange of
Notes, Memorandums, etc.
 VCLT deals with the laws of the treaties were enforced in 1980.
 States are sovereign equals that enter into treaties.
 Treaty is not a single document. Sometimes, there are additional documents as well –
minutes, additional protocol, memorandum of understanding, exchange notes, etc.
 The rules in the treaty are codified. Eg: Pacta Sunt Servanda codified in Article 26 of the
VCLT. However, not everything can be codified.

25th July 2023

Formation of Treaties

In international system, law formation is need based and unsophisticated. Whatever the situation
demands, the states decide to enter into agreements for the same. These agreements are the one
where we locate rights and obligations of the state. There are few similarities between
international agreements and contracts. International agreements are entered into between states,
states – international organizations and IOs- IOs. States could enter into treaties with church,
tribal communities, other states, etc. We also realized that states are interdependent. How could
we fix an obligation on the states? For this, agreements were entered into for different fields. Eg:
Trade, sharing water body, etc. Anything that was the concern of the society. Similarly, in the
contemporary society, we have agreements for everything. Eg: navigation in the sea, cliate
change, etc. Treaties were in existence, but they were not in a specific and definite manner. EG:
Barter system was also an agreement. These have been in practice since ages. But at international
level, we are concerned with treaties between states.

Why we needed Treaties?

i. No commandments

Earlier, obligation to follow law came from commandments. But in international law, we don’t
have anyone who dictates commandments. We don’t have Unipolar world.

ii. Paradoxical Nature of International law

There are certain problems associated with general customary international law. In this kind of
law, the consent of the state does not matter much (jus cogen). No state’s action should defeat
these norms (article 53). This is a paradox. The general customary international law will not be
applicable on the persistent objector. However, in case if jus cogen norms, the states don’t have a
choice to make. This leads to ambiguity. Also, it is very difficult to establish opinio juris. For
this, a need was felt for codified rules.

iii. Subjectivity

Law is all about rights and obligations. In customary international law, the rights and obligations
were located in state practice and opinion juris which are unwritten. These are very broad.
Inaction and silence were counted as opinion juris. In treaties, the rights and obligations were
located in the terms of treaties. There is objectivity, uniformity, predictability and ascertainment
of consent becomes very easy. The states will behave according to the rules and obligations of
the treaties.

As society and law developed, we moved towards codification. For codification, the states
started emphasizing on treaties that give rise to rights and obligations.

In order to govern and regulate a treaty, we have Vienna Convention on Law of Treaties, 1969. It
was codified with the help of International Law Commission, starting from 1949. In 1969, it was
adopted and came into effect in 1980. Before this, treaty rules were located in the specific
treaties and customary international law. Eg: Pacta sunt servanda which was later reflected in
Article 26 of VCLT. But ancient societies believed that treaties are to be respected in good faith
to avoid a state chaos.
Kinds of Treaties

Law Making These are general in nature and create a law for
every state.
These reflect rules of customary international law.
Treaties Genovide Convention, VCLT, UN Charter.

Contractual These create rights and obligations for the

participating states only.
Treaties Bilateral Investment Treaties, ASEAN, NATO, etc.

Preamble

International customs are difficult to establish and locate. Treaties on the other hand, are easy to
locate.

“Considering the fundamental role of treaties in the history of international relations,”

Treaties , or in essence agreements have been in existence since time immemorial. Ancient rules
had treaty agreements with other civilizations. aAdditionally, the world has never been Unipolar.
This implies states have always been and continue to be interdependent on each other. For the
same, certain rules have been made bilaterally or multilaterally. These rules are called the
agreements or treaties.

These have clarified where we have to look for rights and obligations. Initially, these were
regulated in commandments – religious. Then these were located in customs, and now finally in
the treaties.

Article 2(1)A

“treaty” means 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;

Article 2(1)B : Different forms of consent

“ratification”, “acceptance”, “approval” and “accession” mean in each case the international act
so named whereby a State establishes on the international plane its consent to be bound by a
treaty;

- Relevant articles: 10, 11, 12.

Article 2(1)C

“full powers” means 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;

Any person can enter into treaty provided the person has full power. This full power is presumed
in diplomats, head of the states, etc. People who don’t have full power, are given a certificate for
the same. It is used to express the consent. The person with the competent authority of the state
has full powers. It is the underlying essential for every source of law. It was present in customary
international law as well. This consent is with regards to be bound by the rights and obligations
under rule or law emerging out of the treaty or agreement.

Checklist

 Named people in the article

 Either produces a document showing full power
 Appears from the practice of the state

The President gives his signature. He is not there for the draft, etc.

Article 2(1)D

It is not that different states can exercise different choices in following treaty obligations. The
treaty provisions are to be imported to domestic law. For example, India is under the legal
obligation on entering into CEDAW and Genocide treaty. ICCPR civil and political rights found
in the fundamental rights. These legislations (domestic law) can be used to establish state
practice.

But there are few states which would not want to be bound by particular provisions of the
treaties. For the same, they will have to give a unilateral declaration on the same. These terms
and conditions imposed by the state are called reservations.
“reservation” means 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;”

Example: India has also put a reservation on one of the provisions of CEDAW that deals with
property rights of women:- Article 16 of CEDAW;

“States Parties shall take all appropriate measures to eliminate discrimination against women in
all matters relating to marriage and family relations and in particular shall ensure, on a basis of
equality of men and women;

This provision cannot be implemented in India because of contradicition with personal laws.
Hence, India has put reservation on this particular clause.

States cannot put a reservation, the effect of which will defeat the purpose of the treaty. The
object and the purpose of the treaty should always be achieved. This has been mentioned in ICJ
Advisory opinion on the Prevention of Genocide,

States & Parties

2(1)E:

 “negotiating State” means a State which took part in the drawing up and adoption of the
text of the treaty;
 Eg: Rome Statute provides protection against four types of crimes. India is a negotiating
state and took part in drawing up and adoption of the treaty. India wanted terrorism and
nuclear weapon non proliferation to be included along with a limited role of UNSC.

2(1)F:

 “contracting State” means a State which has consented to be bound by the treaty,
whether or not the treaty has entered into force;
 Contracting states are the ones which participated in the negotiation as well as are a party
to the treaty.

2(1)G:

 “party” means a State which has consented to be bound by the treaty and for which the
treaty is in force;
2(1)H:

 “third State” means a State not a party to the treaty;

2(1) I: “

international organization” means an intergovernmental organization

Article 4: Non-retroactivity of the present Convention

“Without prejudice to the application of any rules set forth in the present Convention to which
treaties would be subject under international law independently of the Convention, 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 6: Capacity of States to Conclude Treaties

“Every State possesses capacity to conclude treaties.”

Article 7: Full Powers

“1. A person is considered as representing a State for the purpose of adopting or authenticating
the text of a treaty or for the purpose of expressing the consent of the State to be bound by a
treaty 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.

2. In virtue of their functions and without having to produce full powers, 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.”

The states have capacity to enter into treaties. On the behalf of the state, the bureaucrats,
diplomats, etc. negotiate the treaties provided the person has full powers. (Article 7) Full powers
are located in the document asserted by the state and in case of absence of this, the state practice
has to be seen.

The state may or may not be bound by the representative’s representation. In cases where the
representative exceeds its power, or is not in a full position to give consent, the state may not be
bound by the representation. For eg: A representative negotiates a trade deal. Before, they maje it
an obligation for the state, they might want to seek opinion of others like environment ministry.
They need time for the same. This is why concept of consent comes.

Article 9: Adoption of text

“1. 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.

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”

There is no hard and fast rule on how the text is to be adopted. There can be various ways,
simple majority, special majority, voting in general assembly (genocide convention, convention
against torture), etc.

Authentication of Treaties

Article 10 of VCLT talks about the authentication of the text.

“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 initialling by the
representatives of those States of the text of the treaty or of the Final Act of a conference
incorporating the text.”
Article 11: Means of expressing consent to be bound by a treaty

“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”

 Signature
Article 12 of VCLT
“The consent of a State to be bound by a treaty is expressed by the signature of its
representative when:
(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.”

 Rectification
Article 14 of VCLT
“1. The consent of a State to be bound by a treaty is expressed by ratification when: 6 (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.”

Signature and ratification are the most powerful ways of communicating consent. It provides
protection to the rights of the state.

Generally, means of communicating consent takes place by – adoption and ratification. Certain
treaties provide time gap between signature and ratification. Ratification is an internal process.
Whatever rights and obligation arise out of treaties are to be enforced in the domestic territory.
These have to be decided internally. Not every treaty needs to be ratified or signed. Article 12,
13, 14 and 15 clearly mentions ‘if so provides’. Annexation: Treaty already in place, the original
members would have to agree with the new state joining the treaty.

Article 13: Consent to be bound by a treaty expressed by an exchange of instruments

constituting a treaty
“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
should have that effect.”

Qatar v Bahrain 1994: Minutes (Doha) enumerate the commitments to which the parties have
consented. They create rights and obligations in international law for parties. Their international
agreement, the content and substance of an instrument must be prioritized over its form.

Treaty v Customary International Law : Treaty will supersede because it is lex specialis

Lex late : Law as it is. Eg: Treaties, Customary International Law.

Lex Ferende : Law as it should be. Eg: UNGA Resolutions, Draft Articles, Draft Conclusions.

29th July 2023

Article 18: Obligation not to defeat the object and purpose of a treaty prior to its entry into force

“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.”

1st August 2023

Reservation
Three situations before the states at the time of joining a treaty

- Agreeing to all the terms and conditions

 - Not agreeing (Eg: Rome Statute- India, China etc don’t agree with a number of norms of
Rome Statute like terrorism not included, role of UNSC, etc.)
- Agreeing on some of the points, leaving behind rest.

The form of the unilateral statement may differ, the content is important.

Article 2(1)D: “reservation” means 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;

Ingredients: (Article 2D)

- Unilateral statement
- Phrased, named in any matter
- Made at the time of consent
- Result is exclude or modify legal effects of certain provisions.

Purpose: It purports to exclude or modify the legal effects of a particular rule.

Legal Effect: It modifies for the reserving state, the particular rights and regulations.

Other terms to describe this: Declaration, implication, etc.

Article 19 of VCLT;

“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;

Eg: Article 309 of UNCLOS prohibits reservation, Article 42(1) of Refuge convention enlists
provisions on which the states cannot put reservation.

(b) the treaty provides that only specified reservations, which do not include the reservation in
question, may be made; or
Specified reservations can be made in some treaties, Eg: Refuge convention - article 1 and 3 –
cant have reservation on these provisions.

(c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the
object and purpose of the treaty.”

If against the purpose and objective

Reservation before 1969

The condition was – the state that made reservation, had to take the consent of the other parties
of the convention, before giving unilateral statement. This changed in 1951 when ICJ advisory
opinion on Genocide Convention.

2nd August 2023

Approaches to Reservation

1. Opposability

 Prior to 1950, the states had to take the consent of all the states party to the treaty, the
states that don’t agree- will not have a treaty relationship with the joining state.
 This approach is reflected in the VCLT.
 The traditional rule was that the state could not make a reservation to a treaty unless the
reservation was accepted by all states which had signed the treaty. The ICJ said in
Genocide Case, 1951 that this traditional theory was of undisputed value but was not
applicable to treaties like Genocide Convention, which embodied objective obligations
and sought to protect individuals instead of conferring reciprocal rights on the contracting
parties. This applies to all the human rights treaties as these treaties do not create
reciprocal rights and obligations, rather they are for the protection of human rights.

2. Permissibility

 Prior to 1950, the states that agreed, entered into treaty obligations with the reserving
state.

3. 1951 ICJ Advisory Opinion Case

  In 1951, we had ICJ Advisory Opinion on Reservation to Genocide Convention. Consent
is also needed and along with the fact that the reservation must not be in contravention to
the object and purpose of the test. This situation was changed in 1969 wherein VCLT was
formed.
 A state which has made the reservation which has been objected to by one or more of the
parties to the genocide convention but not by others can be regarded as a party to the
convention if the reservation is compatible with the object and the purpose of the
convention.
 This objective purpose is found in 19(3) VCLT.
 For example; Lex Specialis was created for few states. The 2 states that opposed the
reservation do not consider the said state a party.
 Since different states may reach different conclusions about the compatibility of the
reservation, the practical effect of the court’s opinion is that a state making a reservation
is likely to be regarded as a party to the treaty by some states but not by others. In that
respect, the outcome that court reached contradicted its findings as to the objective and
non reciprocal obligation under the genocide convention.
 Ultimately baat toh reciprocal arrangement pe hi aa gyi.

4. 1969 VCLT

In contractual treaties, reciprocal relations are created between two states and the terms and
conditions therein are applicable only these two states. Other states which have objected to
reservation, will have no treaty relationship between the non agreeing states and they themselves.
What about obligatory nature as well as consent? Like genocide convention.

Article 20: Acceptance of and objection to reservation

1. 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.

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.
4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides:

(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 State’s 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.

5. 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.

Article 21: Legal effects of reservations and of objections to reservations

1. A reservation established with regard to another party in accordance with articles 19, 20 and:

(a) modifies for the reserving State in its relations with that other party 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 that other party in its relations with the
reserving State.

2. The reservation does not modify the provisions of the treaty for the other parties to the treaty
inter se.

3. When a State objecting to a reservation has not opposed the entry into force of the treaty
between itself and the reserving State, the provisions to which the reservation relates do not
apply as between the two States to the extent of the reservation.

Article 22: Withdrawal of reservations and of objections to reservations

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. 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

Article 23: Procedure regarding reservations

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.

3rd August 2023

Application of Treaties
Article 84: Entry into force

“1. The present Convention shall enter into force on the thirtieth day following the date of
deposit of the thirty-fifth instrument of ratification or accession.

2. For each State ratifying or acceding to the Convention after the deposit of the thirty-fifth
instrument of ratification or accession, the Convention shall enter into force on the thirtieth day
after deposit by such State of its instrument of ratification or accession.”

Article 24: Entry into force

1. A treaty enters into force in such manner and upon such date as it may provide or as the
negotiating States may agree.

2. 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.

3. 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.

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.

It may vary. Some treaties enter into force with the signature, other wait for ratification, some
also impose some modalities. Yet other modalities include UNGA resolution (special majority or
simple majority).

Article 26 : Pacta sunt servanda

Every treaty in force is binding upon the parties to it and must be performed by them in good
faith.

It codifies the principle of pacta sunt servanda.

Exception is Article 46 which talks about provisions of internal law regarding competence to
conclude treaties

Article 28: Non retroactivity of treaties

“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.”

Bosnia v FR. Yugoslavia

The ICJ decided to apply the genocide convention to relations between Bosnia and FRY and
stated that the convention does not contain any clause the object or effect of which is to limit in
such manner the scope of its jurisdiction. This was to logically admit the possibility that the
convention and the jurisdiction of the court established thereby could have operated
retroactively. The convention applied to the relevant facts which have occurred since the
beginning of the conflict which took place in Bosnia and Herzegobina.

Article 29: Territorial scope of treaties

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.

Treaties are not applicable on third states. Exception: Article 35 and 37

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.

The words contained in the treaty have to be understood in the context. The context needs to be
defined narrowly and it includes only elements agreed to between parties to a treaty. The context
does not include unilateral statements.

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 connection
with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connection 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 context:

(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.

States rarely invoke this subsequent practice. The threshold is higher and it is difficult to
establish. States rarely succeed.

Whaling case

The whaling convention bans whaling. Japan made some unilateral statement with regards to
illegal means for whaling. They reasoned that it was a subsequent practice. The ICJ stated that
the resolution of an international organization dealing with the use of legal means in whaling yet
adopted without the concurrence of Japan could not be indicative of subsequent practice in
relation to Japan. Resolutions adopted by consensus would aid the interpretation of the whaling
convention.

4. A special meaning shall be given to a term if it is established that the parties so intended

The International Law Commission said that when a treaty is open to two interpretations, one of
which does and the other does not enable the treaty to have appropriate effects, good faith, and
the object and purpose of the treaty demand that the former interpretation should be adopted.
This is known as the principle of effectiveness. – ILC, 1996.

The interpretation that gives validity and effectiveness to the treaty should be relied on.

When interpretation is ambiguous. The rules of interpretation can be found in customary

international law, icj judgements, preparatory works and the circumstances of its conclusion
(article 32)

Grammatical interpretation, contextual understanding (systematic interpretation), teleological

interpretation (object and purpose) Preamble

Article 32: Supplementary Means of Interpretation

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.

Eg: genocide convention circumstances – world wars

Travis preporotis – legislative history of a particular rule – draftimg history

Article 34: General Rule Regarding Third States

A treaty does not create either obligations or rights for a third State without its consent.

Exception in article 38.

Article 38: Rules in a treaty becoming binding on third States through international
custom

“Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a
third State as a customary rule of international law, recognized as such.”

Invalidated: fraud, corercion, conflict with jus cogens, etc.

4th August 2023

Structure of Treaty Discussion

1. Introduction:

 Article 38 decoded.
 Purpose & Effect
 History
 Problems with CIL
 UN estb. ILC came

2. VCLT

 Preamble
 Interpretation Clause
 Full Powers
 Consent
 Reservation
 Entry into force
  Interpretation
 Amendment
 Invalidation

Amendment and Modification of Treaties

Article 40: Amendment of Multilateral Treaties

1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed
by the following paragraphs.

2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all
the contracting States, each one of which shall have the right to take part in:

(a) the decision as to the action to be taken in regard to such proposal;

(b) the negotiation and conclusion of any agreement for the amendment of the treaty.

3. Every State entitled to become a party to the treaty shall also be entitled to become a party to
the treaty as amended.

4. The amending agreement does not bind any State already a party to the treaty which does not
become a party to the amending agreement; article 30, paragraph 4 (b), applies in relation to
such State. 5. Any State which becomes a party to the treaty after the entry into force of the
amending agreement shall, failing an expression of a different intention by that State:

(a) be considered as a party to the treaty as amended; and

(b) be considered as a party to the unamended treaty in relation to any party to the treaty not
bound by the amending agreement.

 Exception to Article 26
 Fundamental change in circumstances – rebus sic santibus
 If violation – damages can be taken.

5th August 2023

Invalidating the Treaty

Article 46: Provisions of internal law regarding competence to conclude treaties

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in
violation of a provision of its internal law regarding competence to conclude treaties as
invalidating its consent unless that violation was manifest and concerned a rule of its internal
law of fundamental importance.

2. A violation is manifest if it would be objectively evident to any State conducting itself in the
matter in accordance with normal practice and in good faith.

There are unjust treaties. Eg: Vontobalo Wail, Cuba

1. Consent Based

i. Error

Article 48: Error

1. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if
the error relates to a fact or situation which was assumed by that State to exist at the time when
the treaty was concluded and formed an essential basis of its consent to be bound by the treaty.
17

2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error
or if the circumstances were such as to put that State on notice of a possible error.

3. An error relating only to the wording of the text of a treaty does not affect its validity; article
79 then applies.

Temple of Preah Vihar Case 1962

Fact:

Preah temple was an ancient and significant temple due to its cultural and historical value. It was
situated on the border of Thailand and Cambodia. Though Thailand was the historical owner of
that area in 1904 when Cambodia was a colony of French they came to an agreement with
Thailand; they agreed to divide the border according to the watershed. After that, A French –
Siamiz (now known as Thailand) commission they drew a detailed map of the border where
thought by mistake but very clearly marked the Preah Vihear in the territory of Cambodia, Thai
Government never object after officially receiving that map. Later, after several years when Thai
Prince went to visit that Temple, he sow the French Flag over the temple but did not raise any
objection.

The main objection came by Thailand when UNESCO declared The Preah Vihear as a world
heritage and thus take million dollar project to save it, they demanded it as their land and put
some military personnel, on the other hand, Cambodia rejected that claim. On gradual dispute, it
went to International Court of Justice.

Issue:

Whether Cambodia had sovereignty over the territory of preah Vihear?

Decision:

Cambodia had sovereignty over the whole territory of the promontory of Preah Vihear and that,
in consequence, Thailand was under an obligation to withdraw from that territory the Thai
military or police forces.

ii. Fraud

Article 49: Fraud

If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating
State, the State may invoke the fraud as invalidating its consent to be bound by the treaty

iii. Coercion

Article 51: Coercion of a representative of a State

The expression of a State’s consent to be bound by a treaty which has been procured by the
coercion of its representative through acts or threats directed against him shall be without any
legal effect.

In 1939, German ministers physically assaulted the foreign ministers of Czecoslovakia and
threatened that if they did not allow genramn control over their terirritories they will be
bombarded.

2. Contravention to Jus Cogens Norms

ILC Text of 2019 ON Identification of the Premeptory Norms of General Intenrational Law –
Article 53 and Article 64 of VCLT
Conclusion 10 highlights

“Conclusion 10 Treaties conflicting with a peremptory norm of general international law (jus
cogens) 1. A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law (jus cogens). The provisions of such a treaty have no legal force. 2.
Subject to paragraph 2 of draft conclusion 11, if a new peremptory norm of general international
law (jus cogens) emerges, any existing treaty which is in conflict with that norm becomes void
and terminates. The parties to such a treaty are released from any obligation further to perform
the treaty”

Article 53

“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law. For the purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognized by the international community of States as
a whole as a norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character”.

Article 64

“If a new peremptory norm of general international law emerges, any existing treaty which is in
conflict with that norm becomes void and terminates.”

Termination of a Treaty
State may be freed from the treaty rule. They can suspend the treaty for their territory. They can
put reservation also. Treaties are rarely invalidated.

1. Extinction

 If there is a bilateral treaty it can be terminated if one of the states withdraws. This treaty
may become extinct.

2. Withdrawal

 A,B,C etc entered to supply aeroplanes for particular purpose. Now when the purpose is
fulfilled it can be terminated. ICTY statute estb the tribunal for a purpose – violation of
human rights in Yugoslavia war and the perpretators must be brought to justice. This was
 the ad-hoc tribunal. Statute is also a treaty. Now this treaty is also not in force, it has
become extinct.

3. Denunciation

 Unilateral declaration that we won’t be part of the treaty anymore.

 They are taken here as synonyms. The state seeks to be released from treaty obligations
by a unilateral act whereby it declares its intention to no longer be a party to the treaty.
The fact that one or more than one state party withdraws from a treaty may either
terminate the treaty or restrict its personal scope of application for eg if treaty is bilateral
and denunciation by one state brings this to end for the other state also.
 Qurom clause or parties become less than 2. Art 15 of genocide convention stipulates that
if on account of withdrawal of the number of parties to the convention below 16 the
convention will cease to apply as from the date at which the last denunciation takes
effect.

It can be by:

i. Consent:

Article 54: Termination of or withdrawal from a treaty under its provisions or by consent
of the parties

The termination of a treaty or the withdrawal of a party may take place:

(a) in conformity with the provisions of the treaty; or

(b) at any time by consent of all the parties after consultation with the other contracting States.

 Termination of treaty or withdrawal of party can take place by the consent of all other
states.
 Consent can be express or implied.
 Express like dissolution of league of nations by resolution of last assembly of league on
18 april 1946 the resolution was legally an agreement to terminate the covenant as from
the next day, they consider the issue and agree on termination. This consent is being
expressed outside the treaty, this resolution is passed outside the treaty.
 Sometimes the treaties themselves provides for the termination. Another eg can be
termination of series of bilateral trade agreement in view of entry into force of GATT
1947.
  Consent can also be tacit eg: commercial treaty between Russia and Japan, Russian
revolution happened and communist takeover in Russia happened and this treaty was
abandoned by non-application.
 These examples reflect the consent of the states. The tribunal generally rejects the plea of
termination if the will to terminate and agreement of parties thereto is not expressed in
sufficiently clear terms. Because the tribunal will always want to give precedence of estb
of treaty obliagtions.
 There can be resolutory clauses. These means that sometimes what may happen that
termination of treaty can also take place in conformity with the provision of treaties. Art
54(a). the treaty clauses may provide certain facts whose effect will be to bring traty to an
end or to suspend its application. Few such clauses are based on temporal criteria. That a
treaty shall be extinguished at a certain day. Eg: art 2 of Panama canal treaty 1977
provides that t will terminate on 31 dec 1999. Some resolutory clauses may also be based
on factual criteria eg: warsaw pact of 1955 which under art 11 provided that it should
cease to apply at a day a treaty on global collective security should enter into force for the
European continent.

ii. Emergence of New Jus Cogens

Article 64: Emergence of a new peremptory norm of general international law (“jus
cogens”)

If a new peremptory norm of general international law emerges, any existing treaty which is in
conflict with that norm becomes void and terminates.

Aloeboetae Case

In 1993 Inter American court of human right indicated that it will strike down a treaty between
Netherlands and saramaka tribes of Surinam. Saramaka tribes is a political entity. Under which
the saramakas agreed to capture and return escaped slaves to Netherlands. Today slavery is jus
cogen norm. so inter American court said that you can strike down such treaty.

iii. Suprevening Impossibility

Article 61: Supervening Impossibility of Performance

1. A party may invoke the impossibility of performing a treaty as a ground for terminating or
withdrawing from it if the impossibility results from the permanent disappearance or destruction
of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may
be invoked only as a ground for suspending the operation of the treaty.

2. Impossibility of performance may not be invoked by a party as a ground for terminating,

withdrawing from or suspending the operation of a treaty if the impossibility is the result of a
breach by that party either of an obligation under the treaty or of any other international
obligation owed to any other party to the treaty.

E.g.: Drying up of river which is imp for an electric project between two states.

iv. Subsequent Treaty

Article 59: Termination or suspension of the operation of a treaty implied by conclusion of

a later treaty

1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty
relating to the same subject matter and:

(a) it appears from the later treaty or is otherwise established that the parties intended that the
matter should be governed by that treaty; or

(b) the provisions of the later treaty are so far incompatible with those of the earlier one that the
two treaties are not capable of being applied at the same time.

2. The earlier treaty shall be considered as only suspended in operation if it appears from the
later treaty or is otherwise established that such was the intention of the parties.

The conclusion of latter treat on same subject matter, the earlier treaty shall cease to apply. It can
be expressed or implied.

There will be consent by acquiescence also. If there is no objection.

Q. Whether the complete execution of the treaty is possible?

Possible but sometimes what happened that treaty is abandoned, they are not followed in
practice, they are in dormant condition. Different India rulers have entered into treaties like
Shiva Ji and Tipu sultan what happened to these treaties they are forgotten treaties. It is to some
extend a secondary matter to know whether the treaty continue to exist or not. What is clear is
that there remains no concrete duty of performance; the better opinion is that the treaty remains
in course even if dormant as long as it is not abrogated. The execution of treaty rights and
obligations has no effect on the existence of treaty itself. This seems to be the position of ILC
and the reason for which a provision on this issue was not inserted into the section on
termination of treaties of VCLT. But this must be confessed that in some cases the treaty will fall
into oblivion eg: treaty on exchange of prisoner of war. It is fully complied but it is still in force.

India’s State Practice on VCLT.

10th and 14th August 2023

16th August 2023

17th August 2023

General Principles of Law

Pg 98- 105

Pg 45, 46

The term civilized has become obsolete although it still exists in article 38 of ICJ statute.

Why do we need general principles of law?

These are to be traced from the municipal legal systems, However, it is not possible that the
judge knows all the 193 municipal legal systems. To counter this, in all the municipal legal
systems, there is an underlying the,e which the court is expected to know. In cases were the laws
are inadequate, the court will look into the case with the help of the general principles of law.
The general principles of law are universal in nature.

They can also come from international legal system. Draft conclusion 7

Article 38 of PCIJ talked about the general principles of law.

These can be procedural as well as substantial.

Case Laws

1. Tadic’s Case

The defendants supplied laws from 64 legal systems of the world to prove contempt of court.
Reparation

2. Corfo Channel Case

Circumstantial evidence is reflected in all the legal systems of the world and is a general
principle of law.

3. Chorzow Factory Case

General principles of law can be recognized in substantial issues as well. Eg: Reparation. It is a
general conception of law that any violation of engagement entails an obligation to make
reparation. Reparation of a wrong may consist in an indemnity corresponding to damage which
the nationals of the injured state have suffered as a result of an act contrary to international law.

4. Genocide Convention Case – Bosnia & Hezorgobania v

The principle of res judicata was recognized as a general principle of international law.

There have also been cases where the ICJ did not take into consideration the general principles of
law because other reliable sources were present. Eg: Right to Passage case and Barcelona
Traction Case.

ILC Draft Conclusions on General Principles of International Law – 5, 6, 7.

How to identify?

Municipal and international legal systems.

International Legal System

Report 2 pg 115

Example: Nuremberg Principles recognized by the UNGA since they were criticized for being
victor’s justice.

7 Principles;

123.

133.

Martin’s Clause

136.

150.

18th August 2023

ILC Report – Page 10-35

Replaced civilized states with community of states.

Lacunas in Transposition of Municipal Legal System to International Legal Systems

Conclusion 10

“Conclusion 10 Functions of general principles of law

1. General principles of law are mainly resorted to when other rules of international law do not
resolve a particular issue in whole or in part.

2. General principles of law contribute to the coherence of the international legal system. They
may serve, inter alia:
(a) to interpret and complement other rules of international law;

(b) as a basis for primary rights and obligations, as well as a basis for secondary and
procedural rules.”

General Principles of law may constitute procedural as well as substantive aspect.”

Conclusion 11

“Conclusion 11 Relationship between general principles of law and treaties and customary
international law

1. General principles of law, as a source of international law, are not in a hierarchical

relationship with treaties and customary international law.

2. A general principle of law may exist in parallel with a rule of the same or similar content in a
treaty or customary international law.

3. Any conflict between a general principle of law and a rule in a treaty or customary
international law is to be resolved by applying the generally accepted techniques of
interpretation and conflict resolution in international law.”

Eg: Right to Fair trial which is a general principle of law is recognized in ICCPR as well. There
is no set hierarchy. In case of conflict, generally accepted techniques of interpretation will be
employed.

Generally accepted techniques of interpretation include contextualism, purpose approach,

looking at the history, etc.

Paragraph 3 of draft conclusion 11 indicates that any conflict between a general principle of law
and a rule in treaty or customary international law is to be resolved by applying the generally
accepted techniques of interpretation and conflict resolution in international law. This paragraph
must be read together with the conclusions of the Study Group on the fragmentation of
international law, which it builds upon. The “generally accepted techniques of interpretation and
conflict resolution in international law” mentioned in the draft conclusion refer to principles such
as lex specialis derogat legi generali, lex posterior derogat legi priori, the principle of
harmonization, as well as to articles 31 to 33 of the Vienna Convention on the Law of Treaties.
Furthermore, account must be taken of recognized hierarchical relationships by the substance of
the rule (peremptory norms of general international law (jus cogens)), and by virtue of a treaty
provision (such as Article 103 of the Charter of the United Nations).
Article 103 of UN Charter

“In the event of a conflict between the obligations of the Members of the United Nations under
the present Charter and their obligations under any other international agreement, their
obligations under the present Charter shall prevail.”

In a case of conflict between UN Charter and jus cogens,

Subsidiary Sources of International Law

Article 38 (1) D

There are disagreements between scholars. Some of them believe that the subsidiary sources are
not source rather evidences in support of other sources.

1. Examples of cases

1. ICJ Reparation Case

2. Nicaragua Case

Use of force- more grave & less grave

3. Tadic Case

Overall control

4. ICTY case

Crimes against humanity can be conducted in peace times as well.

2. Multilateral Acts

PSNR, Friendly declaration, etc.

3. Unilateral Acts of the States

Unilateral statements also create obligation. The foreign minister of France in 1974 made a
statement that they will not conduct nuclear weapons in open environment, and will only do
those underground. New Zealand and Australia filed a case against France on conducting tests in
the open environment. The court regarded the French statement as a binding unilateral act.

4. Statements that have not come as a positive act by the states. These are called non legal
sources of international law.

19th August 2023

Hierarchy of Norms
On reading the first paragraphs of conclusion 10 and 11, it is implied that there is a doubt
between the two. Conclusion 10 states the general principles of law are to be resorted to in case
there in insufficiency or ambiguity in customary international law and treaties, however
conclusion 11 clearly states that there is no hierarchal position of the sources of the international
law.

There is no set hierarchy among the sources, but to an extent, the hierarchy of jus cogens have a
recognized hierarchy in VCLT as well as customary laws.

In case of conflict, article 103 of UN Charter states that when there is a conflict between UN
charter and treaty, the UN Charter will gain precedence. Even the VCLT states that jus cogens
will gain precedence in case of conflict.

Sometimes, lex speciallis come in conflict with lex generalis. There may also be cases where two
lex specialis are in conflict with one another. To solve such a conflict, the ILC had brought out a
report in 2006 titled- Fragmentation of International Law.

Shelton Article

“In the international legal system, the question of hierarchy of norms involves the fundamental
nature and structure of international law and the rules of recognition by which law is
distinguished from norms that are not legally binding. Scholars in recent years have debated this
issue more frequently than their predecessors did during the first decades of the twentieth
century, when participants in the international legal system, the matters of international
concern, and international institutions were far fewer in number. Alfred Verdross wrote ofjus
cogens in 1937, but the notion of a more general "relative normativity" was first discussed and
vigorously criticized by Prosper Weil in a landmark article published in the American Journal of
International Law (AJIL) in 1983.2 Pierre-Marie Dupuy has also argued, on the basis of the
Statute of the International Court of Justice (ICJ) and the sovereign equality of states, that there
is no hierarchy and that logically there can be none: international rules are equivalent, sources
are equivalent, and procedures are equivalent, all deriving from the will of states.”

“It focuses on assertions about the upper and lower extremes of the claimed hierarchical order:
first, that there exist superior norms (jus cogens or peremptory norms), overriding other norms
and binding all states, including objecting states;8 and, second, that international law includes
so-called soft law, that is, normative provisions contained in non-binding texts. With respect to
the first topic, the essay examines theoretical approaches to jus cogens and shows that while the
concept is widely supported in the literature, sometimes to an abusive extent, state practice and
judicial opinions have been slow to recognize or give legal effect to assertions of such norms. At
the same time, a perceptible trend toward discovering peremptory norms has emerged in
international and national tribunals, raising a new set of problems about the consequences of
such recognition”

If jus cogens are recognized as superlative norms, it would create a number of problems.

“A third, related issue, not examined in depth in this essay, pertains more to choice of law
between conflicting norms of equivalent status, although one obvious means of resolving a
conflict is to designate one norm or subject matter as hierarchically superior to others.11 The
problem of conflict has grown with the "fragmentation of international law"'2 over time. As
inter- national law has expanded into new subject areas over the past century, with a
corresponding proliferation of international treaties and institutions, conflicts have increasingly
arisen between substantive norms or procedures within a given subject area'3 or across subject
areas, necessitating means to reconcile or rank the competing rules.”

“Apart from treaty provisions, claims of primacy may be made by those involved in promoting or
ensuring respect for a particular body of international law. Some human rights institutions, for
example, have asserted the priority of human rights guarantees in general over other
international law, without necessarily claiming that the entire body of law constitutes jus cogens.
The UN Committee on Economic, Social and Cultural Rights, in a 1998 statement on glob-
alization and economic, social, and cultural rights,17 declared that the realms of trade, finance,
and investment are in no way exempt from human rights obligations. The Committee's concerns
were raised a second time in a statement urging members of the World Trade Organization
(WTO) to adopt a human rights approach to trade matters, asserting that the "promotion and
protection of human rights is the first responsibility of Governments."

The asserted primacy of all human rights law has not been reflected in state practice. If
eventually accepted, it will reject the notion of lex specialis for trade or other fields where states
can claim to be free from human rights obligations. It could also profoundly affect the work of
all international organizations, which commonly claim to be governed only by their constituting
legal instruments and the mandate therein conferred.

Page 108 of text she will send and this article

21st August 2023

Module 3

Relationship between International Law and Municipal Law

The interaction between international law and states has increased. Primarily, states were the
primary subject of international law. But with developments, the interaction between people,
different organs of the state and states across the world has increased, and the need to study
international law and municipal law has become important. Initially, individual interest was
subservient in the consent of the state. As development occurred, a new notion came into being
that, individual rights are different.

There are two main theories;

1. Monoism

It states that international law and municipal law are part of the same legal system. USA is the
largest supporter of this notion. When a trearty is signed and ratified, it directly becomes the law
of the land. Positivist idea called international law, a weak law since there was no sovereign who
could impose sanctions on deviations. They believed international law and municipal law are the
same thing. They say that the consent of the state is primary. They said there are two different
systems – international and municipal. According to them, both of them existed separately.

Scholars like Harsch Lauterpacht, Kelsen. Both of these scholars led two different stances of
monism. For Lauterpatch, states cannot work under the disguise of their supremacy and cannot
go on violating norms of international law. He was a lawyer is excile, from Poland as a Jew. He
had seen how states, in the garb of sovereignty violated human rights of the people. There should
be something so sacrosanct that such basic rights are protected. Eg: Right to Protect and
Humanitarian Intervention.

2. Dualism

Dualism believes that after being signed treaty is to be incorporated and transformerd into the
legal systems. Scholars like Treipel, Strupp, etc. support such a view. They also had issues with
the naturalist and called them vague and ambiguous. They supported codification of international
law. They laid greater emphasis on the supremacy of the states. They built on theory of dualism.

In incorporation, the international law automatically becomes a part of the municipal system.

Municipal law governs relationship between individual and states while international law
governs relationship between municipal law and international law. However, there are some
issues which are subjected to international law, municipal law and local law as well. Eg: Right to
consular assistance was not granted which became an issue in terms of municipal law, VCTR
violation and international human rights law. Another example- BIT violated by one of the
states, the domestic courts comes into play.

Article: Supreme Court of India on International Law – A Topsy Turvy Journey from Monoism
to Dualism in Liverpool Journal

India and International Law – formal dualism APARNA CHANDRA

VG Hegde INTERNATIONAL LAW IN COURTS OF INDIA

Mod 1 – Bipin Chandra Article

Mod 2 – VCLT and India Article

22nd August 2023

23rd August 2023

Almost all the states try to foster and encourage the application of international law on domestic
law.

India follows the dualist mechanism. The constitutional mechanism in India provides so. Article
51 reads;

“The State shall make every effort to –

(a) promote international peace and security.

(b) maintain just and honourable relations between nations.

(c) foster respect for international law and treaty obligations in organised peoples’ dealings with
one another, and
(d) encourage the settlement of international disputes through arbitration.”

Traditionally, we only focus on maintaining respect for international law and treaty obligations.
But scholars like Prof Chimney have emphasized that article 51c is not to be read alone, rather in
relation with international peace and security, maintain just and honorable relations between the
states and settling disputes via peaceful means- one such peaceful mean being arbitration.

However, this is a DPSP. They are unenforceable but they are fundamental and reflect economic
and socio cultural rights highlighted in ICESCR. ICESCR forms bill of rights along with UDHR
and ICCPR.

There are other constitutional provisions like Article 246 which empowers the Parliament can
make legislations according to the lists. Article 253 states that the union will have the power to
make legislation on matters in the state list. Article 73(1) is another example.

SOPs circulated by ministry of external affairs is also a relevant example.

Along with this, there are a number of treaties that India is part of. Eg: NYC, ICCPR, CEDAW,
etc.

This is manifested through the doctrine of transformation.

Gramaphone Company of India Ltd. Birendra Bahadur Pandey

A collection of pre-recorded cassettes were being imported to Nepal by Sungawa Enterprises

(“Sungawa”) from Singapore through Calcutta port. Any delivery of goods to Nepal through the
sea had to reach Calcutta port (in India) as Nepal is a land-locked country. The Gramophone
Company of India (“Gramophone”) suspected the said cassettes to be unauthorized recordings of
their music and sought action from the Registrar of Copyrights.

The Court emphasized that India is a part of multiple international treaties among the Convention
on Transit Trade of the Land-Locked States, including the ones to protect intellectual property
rights. India would be bound to take measures if a violative activity takes place on its soil,
especially since the Treaty allows for such exceptions. This would not be dependent on the
nationality of the party being affected by the importation of such goods.

The only requirement is that it should not conflict with the domestic law.

Vishaka v State of Rajasthan

The court turned to international conventions like CEDAW. It is a classic case of incorporation.

Incorporation is a feature of monism and is followed in USA.

Ponsonboi Rule

Accoriding to this rule, after signing a treaty, it has to be put in the Parliament for 21 days. This
was done so because the Parliament gets the time to consider and analyze the implications and in
and abouts of the treaty.

TN Godavardan Case

Incorporations Cases:

1. NALSA v Union of India

2. Safai Karamchari Andolan v Union of India

3. Puttaswamy v Union of India

In all these cases, the SC incorporated the international provision in the absence of domestic law.

1984 case – the Sc deviated from its stance

All these cases had to do something with environment or human rights.

2004 – transformation

2008-
Incorporating treaties to which India is not a party.

Nilbatti Behra – detention and compensation. ICCPR Artocle 5(9). The SC gav

Incorporation of Customary International law

Provisions:

1. Article 372

Article 372 of the Indian Constitution governs the continuation in force of existing laws as well
as any adaptations made to those laws.

Existing law: common law of England, customary laws and treaty obligation

2. Article 51 C

Intenational law: general principles of international law and customary international law.

Cases:

1. Ramjhetmalani v Union of India

2. PUCL Union of India 1997

Article referred : Prabhas Article

24th August 2023

Article 3 of VCLT states that the characterization of an act of a state as an internationally lawful
act is governed by international law. Such characterization is not affected by the characterization
of the same act as lawful by internal law.
It would be considered an unlawful act only if it violated some international law. If it violates a
domestic law, it would not amount to an unlawful act as per international standards. The
obligation will arise from customary international law and treaty law.

Article 27 of VCLT states that a party may invoke the provisions of its domestic law as a
justification of its violation. The state cannot take a defense of violation of international law by
stating domestic law.

These two examples indicate that international law will prevail over domestic law.

However, in India the municipal law gets precedence over international law. In the absence of
legislation, we have taken help from international law. Only those international principles will be
applicable which do not violate domestic law.

How does India incorporate customary international law?

Article 372 of the Indian Constitution governs the continuation in force of existing laws as well
as any adaptations made to those laws.

Existing law: common law of England, customary laws and treaty obligation

Cusotmary international law forms corpus juris in India. We don’t need to bring a separate
legislation for the same. \

Mohommad Salimulah v Union of India

The Supreme Court dealt with the application of treaties. The question was regarding the
deportation of Rohingyas. The court stated that even if the executive is asking them to leave the
company. It should not make India obligatory since India is not a part of the refugee convention.

However, it would violate the long standing stance of india on the principle of non refoulment
which would amount to customary international law

Vellore v Union of India

The SC did not conduct the proper test on whether customary international law

In order to establish customary international law, state practice and opinion juris were to be
followed. But the court did not follow these. This judgment was criticized by the scholars.
Another criticism revolved around the TWAIL approach.
What other International Legal Systems talk about International Law

1. United Kingdom

Treaty: It is more or less similar to India’s approach. The power to ratify or sign a treaty belongs
to the crown, ambassadors and other officers. Earlier, ponsoboi rule was followed. Recently
2010 constitutional governance act provides for the possibility for the government to lay before
the parliament the treaties it wishes to ratify. Another distinct feature of the UK’s approach is – a
treaty can be unilaterally altered by the crown which is not the case in India where council of
minister play the central role.

Customary International Law: It automatically becomes a part of the domestic laws.

2. USA

The US constitution provides that the President shall have the power with the advice and consent
of the senate to make treaties provided that 2/3rd of the senators present concur. The treaties
enjoy the same status as national statute. This means they generally derogate pre existing
legislation. The principle of lex posteria dele priori Treaties ratified in accordance with the
Constitution automatically become a part of the municipal law. However, there are some
qualifications in practice. They are two categories of treaites:

Self Executing: If the treaties are ratified in accordance with the constitution of USA, they will
become a part of the municipal system. It is equivalent to the act of the congress.

Non Executing: These will require a special legislation by the Senate.

This has developed from cases.

Medlen v Texas 2008

The US Supreme Court held that unless self executing, a treaty cannot operate in international
law without being domesticated through an act of congress.

Paquete Habana Case 1900

Judge Grey said that international law is a part of our law and must be administered by the court
on justice as often as questions of right depending on it are duly presented for their
determination.

3. Germany

German basic laws enable treaties to have basic effect only after the German Parliament adopts a
statute incorporating the relevant treaty in the domestic level. However, the treaty will not be
ratified by the Federal President unless ratified by the Parliament.

4. France

International law gets preference over domestic law.

 25th August 2023

Module 4
Subjects of International Law

 States
 International Organizations
 Individuals
 Multinational Corporations

Whether all these subjects work in tandem or are there any limitations?

Why is legal personality crucial?

Rights and obligations entail legal personality. For example: a citizen’s rights and duties,
universities. These are reasonable expectations of society and state. These exist at the
international legal system as well. Initially, the states were the sole subject of international law.
The state played a primary role in the international law. The right of the state was so much so
that use of force and war were justifiable.

Multinational Corporations have their headquarters in one parent state from where they control
their subsidiaries.

Individuals have a qualified personality in international law. Individuals can be made liable and
criminally liable for international crimes like mass murder, etc.

1. States

Article 1 of Montevideo Convention enlists four elements of state;

- Territory
- Population
- Government
- Sovereignty (Capacity to enter into foreign relations with other states)

These are the factual and legal requirements of states as well. There are legal underpinnings of
these factual requirements. These are subjective requirements and lack objectivity. What is to be
considered territory is unsettled. Eg: India – China dispute on territory, Israel –Palestine conflict.
There is ambiguity with regards to the population. Government must be stable and able to
exercise effective control over its citizens. The terminology has changed. Yugoslavia, Rwanda,
etc are called failed states. These lack efficient governments. When there is no government, this
absence of effective central government will be balanced or made up when this entity gets
recognition from the UN. How many foreign arrangements do we need to enter into is unclear.
Eg: Kosovo Case, Palestine. As international law developed, the answers to such questions
became easier.

26th August 2023

30th August 2023

31st August 2023

1st September 2023

2nd September 2023

4th September 2023

5th September 2023

Structure of Previous Classes

1. What are the subjects of international law?

2. States as subjects of international law.

3. International Organizations as subjects of international law.

In the Kulbushan Jadhav Case, Pakistan denied consular access and violated international
obligation which is reflected in VCCR article 36.
In the case, an Indian national’s right was violated. Jadhav could not take Pakistan to the
international court. This is because it was a national matter. First, the countries will try to solve
the dispute via peaceful means, and then as last resort move to the international court.

Sovereignty is the exclusive right of the state to decide what rules and obligations we are bound
by and what responsibilities we have. Eg: A sovereign authority issues passport which is used to
issue visa. If another state arrests a national from a state, it has to inform the state.

Every wrong will amount to damage – is another principle of international law.

General Principles of Law can come from municipal law and international law as well. In any
jurisdiction, if any wrong is committed, the remedy for the same is available as well. There is a
tribunal to take care of the remedy. This has been said in the ICJ Advisory Opinion as well.

Traditionally, international organizations can be accorded functional protection.

ICJ Advisory Opinion Case

Facts:

In September 1948 Count Folke Bernadotte and other members of the United Nations Mission to
Palestine were allegedly assassinated by the then Israeli Government in Jerusalem. Mr.
Bernadotte was an agent of the United Nations and the United Nations Mediator in Palestine. He
along with other members of the United Nations were assassinated during the performance of
their duties for the organisation. Later the UN General Assembly’s question concerning
reparation for injuries suffered in the service of the United Nations was referred to the ICJ.
(Resolution of the General Assembly dated December 3rd 1948)

Question of Law:

Whether UNO can on behalf of A (Swedish national) seek reparation from Israel?

Decision:

The United Nations as an organisation has been given ‘international personality’ due to the fact
that without legal personhood it cannot fulfil its main purposes and aims, which are conferred
upon it by the UN Charter.

The Organisation has the capacity to present a claim in the circumstances referred to, on the
basis of the breach by the defendant State of an obligation towards the Organisation itself.
Moreover, the Organisation possesses rights and obligations imposed upon it by the UN Charter.
These rights and duties are different from those of its member states. Although the right is not
expressly stated in the UN Charter, the UN has been given the right to claim reparation for
injuries suffered in the services because it is essential to the discharge of its functions.

What would happen if there is conflict between the claim of states and claim of
international organization?

ICJ Reparation Case;

There is no hard and fast rule and it will depend on the facts of the case. It is ambiguous whether
diplomatic protection is to be exercised or functional protection should be exercised. Both the
claims can logically co-exist. There is no hierarchy Initially, goodwill and common sense should
be resorted to. In cases where goodwill and common sense are not able to work, there should be
conventions in place and they should be resorted to for the same. In such cases, it has to be seen
that for one wrong, you cannot seek reparation twice. The defendant state cannot be expected to
pay the damage twice even if there are different grounds for claim.

In such a case, there is no rule of lan n:hich assigns priority to the one or to the other, or which
compels either the State or the Organization to refrain from bri~ging an international claim. The
Court sees no reason why the parties concerned should not find solutions inspired by goodwill
and common sense, and as between the Organization and its Members it draws attention to their
duty to render "every assistance" provided by -4rticle 2, paragraph 5, of the Charter. hlthoiigh the
bases of the two claims are different, that doeî not mean that the defendant State can be
compelled to pay the reparation due in respect of the damage twice over. International tribunals
are already familiar with the problem of a claim in which two or more national States are
interested and they know how to protect the defendant State in such a case.

The risk of competition between the Organization and the national State can be reduced or
eliminated either by a general convention or by agreements entered into in each particular case.
There is no doubt that in due course a practice will be developed, and it is worthy of note that
already certain States whose nationals have been iniured in the ~erformance of missions
undertaken for the Organization have shown a reasonable and CO-operative disposition to find a
practical solution.

Although the bases of the two claims are different, that does not mean that the Defendant State
can be compelled to pay the reparation due in respect of the damage twice over. International
tribunals are already familiar with the problem of a claim in which two or more national States
are interested. and thev know how to protect the defendant State in such a case. The risk of
competition between the Organization and the national State can be reduced or eliminated either
by a general convention or by agreements entered into in each particular case. There is no doubt
that in due course a practice will be developed, and it is worthy of note that already certain States
whose nationals have been injured in the performance of missions undertaken for the
Organization have shown a reasonable and CO-operative disposition to find a practical solution.”

ICRC as an International Organization

It has its own legal mandates. It has observer status in UN. It is an NGO registered under Swiss
Law. Its role and status as an international organization has been contested. The position is
unclear as of now. With the help of ICRC, the four geneva conventions were concluded. How
can an NGO decide obligations of states. Even, India advocated for an observer status for ICRC
but this should not create a precedence since ICRC is a unique organization and should be
granted an observer status.