PIL-All Slides

PUBLIC INTERNATIONAL LAW
UNIT 1
Introduction to International Law
MISSION VISION CORE VALUES

CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution to Love of Fellow Beings
the society in a dynamic environment Social Responsibility | Pursuit of Excellence
CHRIST
Deemed to be University
IS INTERNATIONAL LAW REALLY A LAW????
What is Law?
Positivist School - John Austin
“Law is the command of the sovereign”
1. Command 2.Sovereignty 3. Sanctions
Austin wrote in The Province of Jurisprudence Determined that:
"The law obtaining between nations is not positive law: for every positive
law is set by a given sovereign to a person or persons in a state”
“International law is Positive Morality”
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IS INTERNATIONAL LAW REALLY A LAW????
HOLLAND- International Law is the vanishing point of

Jurisprudence
● Rules of international law are followed by courtesy.

● The international Law is not enacted by a sovereign.
● It has also no sanctions for its enforcement.
● There is no judge to decide International disputes.
According to Dias, “International Law is obeyed and complied with

by the states because it is in the interests of states themselves.”
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DEFINITION
● Bentham
“International law is a collection of rules governing relations between

states.”
The term was coined by the English philosopher Jeremy Bentham
● Gray
"International Law or the Law of Nations is the name of body of rules
which according to the usual definitions regulate the conduct of the
States in their intercourse with one another.”
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DEFINITION
● OPPENHEIM’s DEFINITION OF PUBLIC INTERNATIONAL

LAW
"The Law of Nations or International Law is the name for the body of
customary and conventional rules which are considered legally
binding by civilised States in their intercourse with each other".
CRITICISMS:
1. International Organisations
2. Individuals
3. General Principles of Law
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DEFINITION
● New Definition of International Law in Latest Edition of

Oppenheim's Book - The editors of the ninth edition of Oppenheim's
book (1992), Sir Robert Jennings and Sir Arthur Watts, have
revised Oppenheim's definition of International Law in the following
words :
● "International Law is the body of rules which are legally binding on

states in their intercourse with each other. These rules are primarily
those which govern the relation of States, but States are not the only
subject of International Law. International organisations, and to some
extent, also individuals may be subjects of rights conferred and duties
imposed by international law."
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DEFINITION
● MOST ACCEPTED DEFINITION

In the words of J G Starke : “ International law may be defined as that body
of law which 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 or

organisations, their relations with each other, and their relations with states
and individuals; and
(b) certain rules of law relating to individuals and non-state entities so far as
the rights or duties of such individuals and non-state entities are the concern
of the international community.
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DIFFERENCES
PUBLIC INTERNATIONAL LAW PRIVATE INTERNATIONAL LAW

Followed by Nations to regulate When there is a foreign element
their relations
Law of Nations Conflict of Laws
Public International law rules are Private International law rules are
outcome of International custom framed by the State legislature.
and treaties.
In public International Law there is In private International Law courts
no Predetermined Court. are predetermined.
Public International Law is same for Private International Law differ from
all the States. state to state.
Jurisdiction – applicable to all states Jurisdiction – Choice as to which
who have consented Court or which law to apply.
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TRUE BASIS OF INTERNATIONAL LAW

● NATURALIST THEORY
● International law was based upon the will of God and that sovereigns
were subject not only to divine law, but also to the laws of nature
established by God.
● There can be no POSITIVE LAW.
● Must follow JUS COGENS
● Source - The Basis of International Law: Why NationsObserve,

Jianming Shen, Penn State International Law Review.
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THEORY OF CONSENT
● SOURCE- The Legitimating role of consent in International Law by Mathew
Lister, Chicago Journal of International Law, Vol II, Article 25.
● John Locke’s State of Nature
● CONSENT
1. Consent should be express
2. Consent once given cannot be withdrawn.
Connecting Consent theory and ICJ
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Contd
○ Application of John Locke’s consent theory to Public International Law
1. Governmental issues
2. Reservations
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THEORY OF AUTO LIMITATION
● Also called as 1. Theory of self limitation

2. Theory of Voluntarism
Attribution of will to states

Branch of consent theory
George Jellinck – Superior will of state to be bound by conventional rules

of International Law and places limitation on its sovereignty.
No other body can curtail their sovereignty. If their sovereignty is to be

limited, it should be limited by themselves.
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Contd
● States have free will

● States are independent
● They are bound only by their consent
● No other state can impose rules on them.
● States themselves can restrict their sovereignty
● It declares that state could only be obliged to comply with

international legal rules if they had first agreed to be so obliged.
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TWAIL
● Third World -- Imperialised Countries

-- Countries that followed Non – alignment policy
---- Developing Countries
● Objectives of TWAIL
1. End the domination of European Countries.

2. Alternate legal order.
3. Scholarship, politics to eradicate underdevelopment.
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TWAIL
● 1996- Harvard Law School students came together to discuss the

implications of Public International Law on Third World.
● Antony Anghie and Chimni coined the terms

TWAIL 1 & TWAIL 2
● TWAIL I - refer to the scholarship produced by that first generation of

post-colonial time.
● TWAIL II - scholars questioned the conditions of the South from a

more global and international perspective.
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TWAIL
● A prominent Third World jurist, Mohamed Bedjao has observed that

international law is premised on
Europe as the center
Christianity as the basis for civilization
Capitalism as innate in humans
Imperialism as a necessity
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TWAIL
● The United Nations, formed after World War II by the dominant

Western powers, aimed to create and maintain global order through
peace, security, and cooperation among states.
● The new global order had two important legitimating features,
1. Non-European powers were now recognized as having the right

to self-determination, which was a repudiation of direct colonialism.
2. Second, states were to be governed by human rights.
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TWAIL
● Security Council – Sovereign equality principle is violated.
● Veto Power - China, France, Russia, United Kingdom, and United

States
● TWAIL – termed veto power as post-colonial subjugation or as

absentee colonialism.
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INDIA and TWAIL
● TWAIL I – scholars spoke about the effects that colonialism had on

India. They stressed upon post- colonialism. By post colonialism, they
did not mean end of colonisation or the era after colonisation. Instead
they meant, the effects that imperialism had on India.
● TWAIL II – they ‘opposed to the unjust global order’
● Upendra Baxi
● B.S Chimni
● M.P Singh
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INDIA AND TWAIL
● Non – Aligned movement by Jawaharlal Nehru.
● Panchasheel agreement with China.
1. Mutual respect for each other's territorial integrity and sovereignty.

2. Mutual non-aggression.
3. Mutual non-interference in each other's internal affairs.
4. Equality and cooperation for mutual benefit.
5. Peaceful co-existence.
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India and TWAIL
● SAARC – 1985
● The SAARC includes the eight South Asian countries viz. India,
Maldives, Pakistan, Sri Lanka, Bhutan, Nepal, Bangladesh and
Afghanistan.
● It has a permanent secretariat in Kathmandu, Nepal. The organization

was started to promote economic and cultural ties amongst its member
states.
● The Association of South East Asian Nations (ASEAN) signed a Free

Trade Agreement with India in 2009
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UNIT – 2
SOURCES OF PUBLIC INTERNATIONAL LAW
● What is Source?
● Sources of Law
● Sources of Public International Law
● Article 38 (1) of Statute of ICJ, 1945
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Contd
● Article 38 (1) of Statute of ICJ, 1945
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;
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Contd
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.
38 (2)- This provision shall not prejudice the power of the Court to
decide a case ex aequo et bono, if the parties agree thereto.
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International conventions, whether general or

particular, establishing rules expressly recognized by
the contesting states;
● Article 1 of the 1969 Vienna Convention on the Law of Treaties.
● "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."
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Definition of Treaty
● According to Malcolm. N. Shaw treaty is an express agreement and

are a form of substitute legislation undertaken by the States.
● He considers treaties as superficial contracts because parties create

rights and obligations.
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Treaty as per VCLT
● Should be in writing
● Should be between States
● There is no prescribed format
● Prospective in nature
Types of Treaties
1. Create future rights and duties

2. Codifies customs - Vienna Convention on Diplomatic Relations,
1964
3. Law making treaties – lay down rules of universal application.
4. Treaty contracts – Between two or few nations.
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Few treaties
● Treaty of Versailles, 1919
● Vienna Convention on Law of Treaties, 1969
● United Nations Charter, 1948
● UNCLOS I, II & III
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Treaty
● Treaty v. Custom – with relation to consent.
● Treaty- express consent.

● Custom – Tacit consent
● Pacta Sunt Servanda – promises are to be kept.
● Treaties are binding and are to be honoured.
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Case Laws
● North Sea Continental Shelf case
● Convention on the Continental Shelf at Geneva on 29 April 1958
● Article 12 - At the time of signature, ratification or accession, any

State may make reservations to articles of the Convention other than
to articles 1 to 3 inclusive
● Article 6 - Equidistance Principle
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FACTS
● Denmark and Netherlands intended to extend their boundaries based

on equidistance principle as per Article 6 of the Geneva Convention
on Continental Shelf, 1958. Germany opposed to this since its coast
was concave and feared that it would much of the continental shelf
which would be an inequitable result to Germany. Hence, a case was
filed by Denmark and Netherlands against Germany.
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EQUI-DISTANCE PRINCIPLE
D
E
N
M
A
R
K
.
TH GERMANY
NE
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ISSUE????
● Is Germany under a legal obligation to accept the equidistance-special

circumstances principle, contained in Article 6 of the Geneva
Convention on the Continental Shelf of 1958, either as a customary
international law rule or on the basis of the Geneva Convention?
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Contentions of Denmark and Netherlands
● The delimitation as between the Parties of the said areas of the

continental shelf in the North Sea is governed by the principles and
rules of international law which are expressed in Article 6, paragraph
2, of the Geneva Convention of 1958 on the Continental Shelf.
● Equidistance Principle is now international customary law since it is

being followed by majority of states. Equidistance principle has
acquired the status of international custom.. So, Germany is bound by
the principle irrespective of not being a member to the convention.
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Contentions of Germany
● The delimitation of the continental shelf between the Parties in the

North Sea is governed by the principle that each coastal State is
entitled to a just and equitable share.
● The method of determining boundaries of the continental shelf using

equidistance method is not a rule of customary international law.
● Germany has signed the Convention but has not ratified the same. So,
Germany is not bound by the Convention.
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DECISION
● The use of the equidistance method had not crystallised into

customary law and the method was not obligatory for the delimitation
of the areas in the North Sea related to the present proceedings.
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FINDINGS
● The Court held that Germany had not unilaterally assumed obligations
under the Convention. The court also took notice of the fact that even
if Germany ratified the treaty, it had the option of entering into a
reservation on Article 6 as per Article 12.
● The court held that equidistance principle is not customary

International Law because of Article 12.
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FINDINGS
● For a customary rule to emerge the Court held that it needed:
(1) very widespread and representative participation in the Convention
(2) Uniform practice
(3) a general recognition of the rule of law or legal obligation (i.e. opinio
juris).
(4) Duration - immaterial
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Findings
● Widespread and representative participation.
The Court held that the first criteria was not met. The number of
ratifications and accessions to the Convention (39 States) were not
adequately representative or widespread.
● Uniform practice and opinio juris

The Court examined 15 cases where States had delimited their
boundaries using the equidistance method, after the Convention
came into force.
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INTERNATIONAL CUSTOMS
● What is custom?
○ A usage or practice of the people, which, by common adoption

and acquiescence and by long and unvarying habit, has become
compulsory and has been acquired the force of law.
○ Malcolm N. Shaw defines customary international law as

“Customary international law refers to international obligations
arising from established state practice.
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Contd
● Custom and usage
○ Usage is the twilight of a custom.

○ A custom begins when an usage ends.
Attributes of custom
1. Time immemorial
2. Certainty
3. Reasonable
4. Compulsory observance
5. Conformity with law
6. Consistency
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Contd
● When a custom is treated as International custom?

■ Material aspect - repetition
■ Psychological aspect – expectation
● What are few International Customs?
1. non-refoulement
2. Immunity of visiting foreign heads of state.
3. Practices of International organs
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Contd
● From Sources of International Law: An Introduction by Professor

Christopher Greenwood:
"Customary law is not a written source. A rule of customary law, e.g.,

requiring States to grant immunity to a visiting Head of State, is said
to have two elements. First, there must be widespread and consistent
State practice – i.e States must, in general, have a practice of
according immunity to a visiting Head of State. Secondly, there has to
be what is called “opinio juris”, usually translated as “a belief in legal
obligation; i.e States must accord immunity because they believe they
have a legal duty to do so."
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Contd
● All Jus Cogens are international customs but all customs are not jus
cogens.
● In North Sea Continental Shelf case, the CJ held that in order to argue
that a customary rule has emerged one needed to prove:
● (1) The objective element (State practice), in other words;

a) widespread and representative participation. b)
uniform practice
● (2) The subjective element (Validation or recognition)
c)general recognition of the rule of law - opinio juris.
Duration was held to be immaterial.
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Contd
● In the North Sea Continental Shelf Cases,
● The Court examined 15 cases where States had delimited their

boundaries using the equidistance method, after the Convention came
into force wherein 39 states had ratified the convention. So, the Court
held that there was no widespread of equidistance principle to call it a
custom.
● The court concluded, even if there were some State practice in favour
of the equidistance principle the court could not deduct the necessary
opinio juris. The North Sea Continental Shelf Cases confirmed that
both State practice (the objective element) and opinio juris (the
subjective element) are essential pre-requisites for the formation of a
customary law rule.
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Contd
● Opinio juris sive necessitates – subjective element
● The ICJ explained opinio juris, in the Nicaragua case, as follows:
“for a new customary rule to be formed, not only must the acts
concerned ‘amount to a settled practice’, but they must be
accompanied by opinio juris sive neccessitatis. Either the States
taking such action or other States in a position to react to it, must have
behaved so that their conduct is evidence of a belief that the practice
is rendered obligatory by the existence of a rule of law requiring it.”
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Case Laws on International Customs

● S.S. Lotus case
French Steamer – S.S Lotus
Turkish Steamer – S.S. Bozkurt Collided in Greece
Turkish steamer drowned

Case was decided in Turkey according to Turkish Law.
Court of Istambul convicted Demons and imposed fine and
punished him with 80 days imprisonment.
France objected to it.
Turkey and France entered into an agreement and agreed to decide

their jurisdictional dispute before PCIJ. Turkey was not a member of
Legaue of Nations. Hence, had to give written document accepting the
PCIJ jurisdiction before hearing.
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Contentions of the parties
● Contentions of France
● International law does not allow a state to take criminal proceedings

against the foreign offender by reason of the victim’s nationality.
● International law, apart from express or implied agreement, does not

entitle a state to extend the criminal jurisdiction of its courts to
include offences against its citizens committed outside its territory.
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Contd
● Acts performed on the high seas in the relevance of criminal

proceedings are subject to the courts of the nationality of the ship.
● Jurisdiction cannot be transferred to the nationality of the vessel sunk.
● The Turkish courts cannot exercise jurisdiction of an extra territorial

sort, such as claimed in the Lotus case, unless they can point out some
evidence that such exercise of jurisdiction is allowed in the
International Customary Law.
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Contd
● Contentions of Turkey
● S.S Boz-Kourt was with Turkish flag, and so Turkish Courts have
jurisdiction of the offence.
● Vessels on the high seas form part of the territory of the nation whose
flag they fly, and in the principal case the offence occurred on the
Turkish vessel, Boz-Kourt, where the effects were felt
● Turkish government has jurisdiction because of international

customary law.
● Turkey has jurisdiction, and therefore no reparation should be paid by

the Turkish government to the French government.
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Decision of the Court
● There is no customary practice in international law that criminal

proceedings occurring from collisions at sea are exclusively within the
jurisdiction of the state on whose flag the vessel is flown.
● “The offence for which Lieutenant Demons appears to have been

prosecuted was an act – of negligence or imprudence – having its origin on
board the Lotus, whilst its effects made themselves felt on board the
Boz-Kourt. It is only natural that each should be able to exercise jurisdiction
and to do so in respect of the incident as a whole. It is therefore a case of
concurrent jurisdiction.”
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Contd
● Now the first and foremost restriction imposed by international law

upon a State is that-failing the existence of a permissive rule to the
contrary-it may not exercise its power in any form in the territory of
another State. In this sense jurisdiction is certainly territorial; it cannot
be exercised by a State outside its territory except by virtue of a
permissive rule derived from international custom or from a
convention.
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Contd
● TWO PRINCIPLES
● Outside its territory – 1st Lotus Principle
It may not exercise its power in any form in the territory of

another State. In this sense jurisdiction is certainly territorial; it cannot
be exercised by a State outside its territory except by virtue of a
permissive rule derived from international custom or from a
convention.”
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Contd
● Within its territory – 2nd Lotus Principle
State may exercise its jurisdiction, in any matter, even if there is

no specific rule of international law permitting it to do so. In this case,
the Court equated the Turkish vessel to Turkish territory. The
Court held that the “… offence produced its effects on the Turkish
vessel in which the application of Turkish criminal law cannot be
challenged, even in regard to offences committed there by foreigners.”
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Dissenting Opinion
● Judge Loder characterized Turkey's position as "based on the

contention that under international law everything which is not
prohibited is permitted. In other words ... every door is open unless it
is closed by treaty or by established custom.”
● Judge Weiss claimed that the majority opinion meant that Turkey "can
do as she thinks fit as regards persons or things unless a specific
provision in a treaty or an established custom in international relations
prevents her from so doing. This power is thus in its essence unlimited
....”
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After S.S. Lotus case
● Article 11 of the High Seas Convention, Geneva, 1958
1. In the event of a collision at the high seas, no penal or disciplinary

proceedings may be instituted against the master or any service person
of the ship other than the flag state of the ship or the nationality of the
person.
● The exact wording of Article 11 is also included in the convention's

successor, UNCLOS (United Nations Convention of the Law of the
Sea of 1982) under Article 97.
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THE RIGHT TO PASSAGE CASE – PORTUGAL v.

INDIA
● The case is concerned with right of passage over Indian Territory
between Portugal and India.
● The Portuguese Government requesting the Court to recognize and
declare that Portugal was the holder or beneficiary of a right of
passage between its territory of Diu and its enclaves of Dadra and
Nagar-Haveli and between each of the and that this right comprises
the facility of transit for persons and goods, including armed forces,
without restrictions or difficulties.
● It is common ground between the Parties that the passage of private
persons and civil officials was not subject to any restrictions.
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Origin of the Custom
● In support of its claim, Portugal relies on the Treaty of Poona of 1779

and on sanads (decrees), issued by the Maratha ruler in 1783 and
1785, as having conferred sovereignty on Portugal over the enclaves
with the right of passage to them.
● Right to passage was restricted to civilians and transport of good and

not armed men.
● But eventually, Portuguese were at times allowed to transport arms

and ammunitions.
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Contentions of Portugal
● Portugal claimed a right of passage to the extent necessary for the

exercise of its sovereignty over the enclaves, without any immunity
and subject to the regulation and control of India.
● In support of its claim, Portugal relies on the Treaty of Poona of 1779

and on sanads (decrees), issued by the Maratha ruler in 1783 and
1785, as having conferred sovereignty on Portugal over the enclaves
with the right of passage to them.
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Contentions of India
● India contends that the Treaty and the two sanads of 1783 and 1785
taken together did not operate to transfer sovereignty over the
assigned villages to Portugal, but only conferred upon it, with respect
to the villages, a revenue grant of the value of 12,000 rupees per
annum called a jagir or saranjam.
● India argued before the Court that practice between only two states
was not sufficient to form a local custom.
● Portugal had right to passage but that right covered only civilians and
not armed men.
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Decision and Reasoning
● The Court held that a local custom is binding on the parties.
● The court further reasoned as to why a century and a quarter of

practice based on mutual rights and obligations were insufficient for
local custom to arise.
● The court held that the Portugal has right of passage but it is restricted
only to civilians and diplomats.
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The Asylum Case – Columbia v. Peru
● Peru issued an arrest warrant against Victor Raul Haya de la Torre “in
respect of the crime of military rebellion” which took place on
October 3, 1949, in Peru.
● 3 months after the rebellion, Torre fled to the Colombian Embassy in

Lima, Peru.
● The Colombian Ambassador confirmed that Torre was granted

diplomatic asylum in accordance with Article 2(2) of the Havana
Convention on Asylum of 1928 and requested safe passage for Torre
to leave Peru.
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Contd
● 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.
● Peru refused to accept the unilateral qualification and refused to grant

safe passage.
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Laws involved
● Asylum to be granted only if there exist urgency.
● Montevideo Convention on Political Asylum- Unilateral qualification

was allowed. Columbia had ratified but not Peru.
● Less number of ratifications – not international customary law. No

other treaty or international custom spoke of unilateral qualification.
● In the case of the Havana Convention, a plain reading of Article 2

results in an obligation on the territorial state (Peru) to grant safe
passage only after it requests the asylum granting State (Colombia) to
send the person granted asylum outside its national territory (Peru). In
this case the Peruvian government had not asked that Torre leave
Peru.
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Decision of the Court
● The court stated that in the normal course of granting diplomatic

asylum a diplomatic representative has the competence to make a
provisional qualification of the offence (for example, as a political
offence) and the territorial State has the right to give consent to this
qualification.
● In the Torre’s case, Colombia has asserted, as the State granting

asylum, that it is competent to qualify the nature of the offence in a
unilateral and definitive manner that is binding on Peru.
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Contd
● The court looked at the possibility of a customary law emerging from

State practice where diplomatic agents have requested and been
granted safe passage for asylum seekers, before the territorial State
could request for his departure.
● Once more, the court held that these practices were a result of a need
for expediency and other practice considerations over an existence of
a belief that the act amounts to a legal obligation.
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General Principles of law recognised by civilized states
"General Principles of International Law" are among the sources of

national and international law' which have long been recognized and
applied in disputes between States.
● PCIJ – Article 38(I) (3)
● Civilised states- Presumption that all the member nations of UNO

are civilized nations.
● To cover non liquet situations.
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Contd
● Verzijl - “Principles which are so fundamental to every well-ordered

society that no reasonable form of co-existence is possible without
their being generally recognized as valid.”
● Bin Cheng - "General Principles" are "cardinal principles of the legal

system, in the light of which international law is to be interpreted and
applied.”
● Professor Schlesinger - "General Principles" as "a core of legal ideas

which are common to all civilized legal systems."
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Case laws
● Chorzow Factory case, 1928
● After the 1st World War, bilateral agreement was entered between
Poland and Germany according to which Upper Silesia area was
transferred by Germany to Poland and Poland agreed not to confiscate
any of the German properties situated in Upper Silesia. But later,
Poland confiscated two German Companies. Aggrieved by this
Germany filed a case against Poland before PCIJ.
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Contd
● Issue
● Whether PCIJ has jurisdiction to try the case?
● Whether Poland has violated the agreement?
● If Poland has violated the agreement, should Poland be made to pay

reparation to Germany?
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Contd
● DECISION
● Poland was also held to be in violation of the agreement entered with

Germany and made liable to repair any loss suffered by Germany due
to the forfeiture of the two companies as they violated the obligation
that Poland had towards Germany in observance of International law.
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Principles
● It is a general conception of international law that every violation of

an engagement between two independent states ensue an obligation to
make reparation, adopted from municipal law.
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NEXT SOURCE
● Article 38 (1) (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.
● The only existing permanent international court with general

jurisdiction is the International Court of Justice, 1946 which
succeeded the Permanent Court of Justice.
● Article 59 of ICJ Statute - “The court’s decision will have no binding

force except between the parties and in respect of that particular
case”.
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PCIJ and Judicial decisons
● PCIJ did not consider its previous judgements for guidance.
● Similar decisions acted as a trend but it did not have any binding
force.
● Same rule is being followed by ICJ
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ICJ and JUDICIAL DECISIONS
● Article 59 and its connection with Article 63.
● Article 63
1. Whenever the construction of a convention to which states other

than those concerned in the case are parties is in question, the
Registrar shall notify all such states forthwith.
2. Every state so notified has the right to intervene in the proceedings;

but if it uses this right, the construction given by the judgment will be
equally binding upon it.
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Contd
● ICJ do not follow doctrine of precedent.
● ICJ upheld the legitimacy of baseline method while delimiting

territorial waters in Anglo-Norwegian Fisheries case in 1951.
● The same rule is now codified in Article 4 of the Geneva Convention

of 1958 on Territorial sea and Contiguous zone and the same rule also
can be witnessed in Articles 3 – 7 in UNCLOS III of 1982.
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Contd
● Reparation case
● U.N.O was granted legal personality status to institute proceedings

against Israel.
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Contd
● Domestic Courts decisions are also considered by ICJ.
● For instance- To establish general principles of law, the Court

considers municipal court decisions.
● The decisions of AD HOC tribunals are also considered by ICJ.
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Equity
● 38 (2)- This provision shall not prejudice the power of the Court to
decide a case ex aequo et bono, if the parties agree thereto.
● North Sea Continental Shelf case
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Libya v. Malta
● Facts
● Libya and the Republic of Malta, submitted a dispute concerning

delimitation of continental shelf to the International Court of Justice
on July 26, 1982. Both States had granted petroleum exploration
concessions in their continental shelves, leading to disputes due to
application of different principles of international law in its
delimitation. Essentially, while Malta strictly applied the ‘equidistant’
principle, Libya preferred to modify the principle in light of relevant
circumstances
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ISSUES
● Whether the countries are bound by Equidistance Principle?
● Whether customary law is to be considered in delimiting continental

shelf?
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Judgement
● The Court determined the applicable law as customary international

law for twofold reason; firstly, while Malta is a party to Geneva
Convention on Continental Shelf 1958, Libya is not and secondly,
while both are parties to United Nations Convention on the Law Of
the Sea (UNCLOS) 1982, it had not entered into force. Court allowed
Libya’s contention and held that equidistance principle needed not be
followed.
● Equitable principle and not equidistance principle.
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RIVER MEUSE CASE
● Facts
● Belgium and Netherlands entered into a treaty to settle water dispute

once for all permanently.
● Treaty- to govern water diversions of river Meuse and feeding that

water to the irrigation canals.
● Economic growth in both the countries changed the situation.
● Both the parties signed another treaty but Netherlands refused to ratify
the treaty.
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Contd
● Netherlands proceeded to construct and complete the Juliana Canal,

the Bosscheveld Lock and the Borgharen barrage. On its part,
Belgium began the construction of the Albert Canal, unfinished at the
time of the judgment, a barrage at Monsin and a lock at Neerhaeren.
● Netherlands filed a case against Belgium to stop the canal

construction.
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Judgement
● Rejected all the claims
● Applied equity principle – He who seeks equity must do equity.
● Also applied contract Principle????
● The Court also referred to Roman law. In Roman law, a similar

principle made the obligations of a vendor and a vendee concurrent.
Neither could compel the other to perform unless he had done, or
tendered his own.
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Erga Omnes
● erga omnes” (Latin: ‘in relation to everyone’)
● Erga omnes obligations refers to specifically determined obligations

that states have towards the international community as a whole.
● It is used to describe obligations or rights towards all.
● Obiter Dictum of Barcelona Traction case – Erga Omnes
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Barecelona Traction case
● the outlawing of acts of aggression;
● the outlawing of genocide;
● protection from slavery; and
● protection from racial discrimination.
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Relationship between jus cogens and erga omnes
● Jus Cogens are the pre-emptive norms which cannot be derogated

either by a treaty or by a customary law.
● Erga Omnes are basically the obligation or the duty which a state has
against rest of all the nations.
● Jus cogens creates norms and erga omnes deals with the obligation.
● A jus cogens rule creates an erga omnes obligation for states to

comply with a rule.
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Contd
● Breach of an erga omnes norm in theory makes the party which has
breached obliged to all. Jus cogens are a set of legal norms that cannot
be contracted out by any agreement.
● The breach of Jus Cogens does not always make the party breached
obliged to all but it is the case when an erga omnes norm is breached;
the state which breaches erga omnes is obliged to all.
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LEX SPECIALIS DEROGAT LEX GENERALI

● When two norms apply to the same subject matter, the rule which is
more specific should prevail and be given priority over that which
is more general.
● States are free by entering into a treaty to modify the obligations

which would otherwise be applicable between them under customary
international law. In other words, as a general matter, a treaty
obligation, being more specific, will prevail over customary
international law, as it is more general.
● The second manner in which the lex specialis principle may be used is
as a means for articulating the relationship between norms contained
in the same treaty, or in connected instruments, which are potentially
applicable to the same subject-matter.
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LEX POSTERIOR DEROGAT PRIORI
● A later rule is presumed to trump an earlier rule. A later rule abrogates

an earlier rule of similar status, unless otherwise stated in the
provisions implementing the later rule.
● What happens when treaty law and customary law comes into conflict
regarding a particular issue wherein applying each of these leads to
contradictory result?
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Persistent Objector and Subsequent Objector
● Treaty Law – Express consent – ratified or not ratified
● Customary Law- Tacit consent or express consent
● If a state remains silent, it can be considered as tacit consent.
● In customary international law, (1) a state may refuse to be bound by

the customary international law at its inception – a persistent objector
or (2) a state may refuse to be bound by customary international law
after it comes into force – a subsequent objector.
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Contd
● When it is considered as Persistent Objector?
(1) A state objects to the practice at the initial stages of the formation
of customary law and continue to object in a sustained manner; or
(2) A state adopts a contrary practice at the initial stages of the

formation of customary law and continue to do so a sustained manner.
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Subsequent Objector
● The consequence of a subsequent objector – one who objects after the

formation of the customary law rule – is clear. The state that objects
continues to be bound by the customary law. If it acts in contrary to
the law, it violates the law. The state can be held responsible for the
violation under international law.
● If a number of states agree to the deviation then these states could

create another customary law rule, either as a local custom or, if a
sufficient number of affected states participate, a general custom.
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Contd
● For a subsequent objector to develop a new customary law rule an

existing norm must be broken. A state wishing to change customary
law must either
(1) violate the law and hope other states would acquiesce to it (and if,
and until such time the state would be in breach of a customary
international law); or
(2) without violating the existing law the state must (a) get a sufficient
number of states to accept a new customary law.
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Res Judicata
● Genocide case
● Bosnia and Herzegovina v Serbia and Montenegro
● Socialist Federal Republic of Yugoslavia (SFRY)
1. Bosnia and Herzegovina,

2. Croatia,
3. Macedonia,
4. Montenegro,
5. Serbia,
6. Slovenia
In September 1992, the Federal Republic of Yugoslavia (consisting of
Serbia and Montenegro) failed to achieve de jure recognition.
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Facts
● The proceedings began on 20 March 1993 when Bosnia and

Herzegovina ﬁled an application against the Federal Republic of
Yugoslavia (Serbia and Montenegro) for alleged breaches of the
Convention on the Prevention and Punishment of the Crime of
Genocide.
● The Security Council in its Resolution considered ‘that the State

formerly known as the Socialist Federal Republic of Yugoslavia had
ceased to exist ’
● The question of UN Membership arose.
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Contd
● According to Article 9 of GA massacre was perpetrated by Serbian

forces on 8000 Bosnia Muslim men of fighting age in a small village
called Srebrenica in July 1995 during armed conflicts that arose in
1992-1995 within Bosnia and Herzegovinaenocide Convention, ICJ
had jurisdiction to try the case.
● Serbia at the time maintained that it was the legal continuator of the
former Socialist Federal Republic of Yugoslavia (“SFRY”) and that,
as such, it had inherited the SFRY’s UN Membership and its
international obligations, but this contention was opposed by the
Security Council and the General Assembly
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Contd
● General Assembly stated that the States should apply for membership.
● Accordingly, Serbia and Montenegro were not allowed to participate

in the work of the General Assembly, its subsidiary organs, nor in
conferences and meetings convened by it.
● But the question of membership did not arise in this case.
● The court ruled against Serbia and held that they had breached the
Convention.
● The Court referred to Article 35 of ICJ Charter to determine

jurisdiction over the case.
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ICJ Provisions
Article 35
(1)The Court shall be open to the states parties to the present Statute.
(2) The conditions under which the Court shall be open to other states
shall, subject to the special provisions contained in treaties in force, be
laid down by the Security Council, but in no case shall such
conditions place the parties in a position of inequality before the
Court.
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Article 61
Revision of Judgement may be made
● Discovery of new fact
● Within 6 months after discovery of new fact
● No application of revision after the lapse of 10 yrs from the date of

judgement.
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Next set of proceedings
● Following the overthrow of the Milosevic regime in October 2001,

Serbia abandoned its claim to being the continuator of the SFRY and
to being party to the Genocide Convention and a UN Member.
● Serbia proceeded to lodge a new round of jurisdictional objections in

the Genocide case. Serbia’s renewed jurisdictional challenge was
contained in its 2001 application.
● The Initiative was lodged concurrently with an application under

Article 61 of the ICJ Statute for “revision” of the 1996 Judgment on
jurisdiction
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Contd
● Serbia had not been a UN Member in any form until its admission to
the United Nations as a “new Member” on November 1, 2000 and that
it had not been a party to the Genocide Convention until March 8,
2001 when it deposited its instrument of accession containing a
reservation to the Genocide Convention’s clause contained in Article
9.
● The first was that the Court lacked jurisdiction because Serbia was
ineligible to be a party to the Genocide Convention and its Article 9
clause when Bosnia and Herzegovina filed its application in this case
on March 20, 1993 since Serbia was not a UN Member at that time
and UN Membership is the primary qualification to become a party to
the Convention per Article 9.
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Contd
● Use of force Judgement
● The Court applied Res Judicata and closed the case
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TEMPLE PREAH VIHEAR CASE - ESTOPPEL

● Facts
● Temple Preah Vihear is situated on Dangrek range which serves as

boundary between Cambodia and Thailand.
● In 1904, French Indochina (later Cambodia, now Kampuchea) and

Siam (now Thailand) entered into an agreement under which French
topographical experts were to map the frontier region.
● Pursuant to this agreement, the surveyors drew up eleven maps and

sent them to the Siamese government. One of these represented the
Dangrek range and placed the Preah Vihear, along with the Temple,
on the Cambodian side of the border.
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Contd
● In 1949, the French Government protested on learning that Thai

troops had been stationed at Preah Vihear. Cambodia, having become
independent in 1953, instituted the present proceeding before the
International Court of Justice in 1959, asking that it be declared the
sovereignty over the Temple Preah Vihear.
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Judgement
● The Court based its judgement on
(1) that the two countries adopted the maps at the time of their
publishing as officially delimiting the international boundary; and
(2) that the concept of preclusion now prevents Thailand from

claiming sovereignty over the territory.
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Contd
● The Court held that map copies were delivered to the central
government of Thailand. Although Thailand did not expressly
recognize the validity of the maps, the Court concluded that the
circumstances were such as to impose on Thailand a duty to inspect
the maps, and a failure to protest was to be taken as a tacit adoption.
This conclusion was based on the concept of "acquiescence" which
protects a country having taken a position adverse to the interest of
another, where the other fails to protest within a reasonable time. The
theory is that the first country may have relied on its own position and
the other country ought to be estopped to contest the result at a
later time.
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Hierarchy of Sources
● Article 38(1) is silent about hierarchy except for the last source.
● If hierarchy is taken into consideration, then the primary source will

be International Conventions followed by International customs and
lastly general principles of law. Judicial decisions and juristic works
are expressly considered as subsidiary source in the Statute itself.
● General Principles of law would act as a source only when

International conventions and international treaties are silent.
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Relationship between treaties and customs
● Customs and treaties are equally binding.
● Customs can be accepted with tacit consent whereas treaties requires

express consent. Unless a state consent expressly to a treaty, the treaty
is not binding on it.
● Customs are codified as treaties. Treaties act as an evidence for the

customs that are in existence.
● Existence of custom needs to be proved before the Court whereas the

treaty speaks for itself.
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Treaty over custom
● Customs fills the gaps between treaties.
● Customs are considered when treaty is silent.
● General principles of law are considered where international customs

and international conventions are silent.
● If customs are codified, then treaties will have upper hand over such
customs.
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Custom over treaty
● Jus Cogens are international customs.
● But Jus cogens cannot be derogated by a treaty.
● Treaties are binding because of pacta sunt servanda which again is jus
cogens.
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Difficulty in determination
● If an international custom is formed due to a treaty?
● If customary law is codified in a treaty?
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UNIT - 3
RELATIONSHIP BETWEEN MUNICIPAL LAW AND PUBLIC

INTERNATIONAL LAW
Meaning
Differences
Monism
Dualism
Auto-adoption theory
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Meaning
● DOMESTIC LAW
● Municipal law/ Internal Law
● The law or legal system established within a state to govern events,

transactions, and persons within or having a connection to that state;
also internal, municipal, national, or local law/legal system.
● Public International Law
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Differences between Public International Law and

Municipal Law
PUBLIC INTERNATIONAL LAW MUNICIPAL LAW
The word “inter,” which means “between” The laws exist “within” a particular nation
So, literally, “international law” is defined as (State). National laws are those laws that
“law between nations (States) exist “within” a particular nation (State).
States are bound by the International There is no consent theory applicable in
instruments or agreements or international domestic law.
organisation only if they consent to it.
Law of Nations are not above the States Rule of Law
but between the states
Treaties and Conventions Legislations
Lack of executive authority Presence of executive authority
Governs the relationship between states Governs the relationship between

individuals inter se and state and
individuals
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Relationship between International Law and

Municipal Law
● Monism – Propounded by Moser and Martens
● Developed by Wright, Kelsen, Duguit.
● They consider municipal law and international law as the same

branches of legal system which serves the needs of human society.
International Law and Municipal Law are the two facets of law.
● Monism – International laws are directly applicable into National

Legal order. There is no need to give effect or to implement
international law.
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KELSON and MONISM
● Municipal Law and International law are not separate but are branches
of law.
● Municipal Law derives its legal system from international law.

● International Law delegates its functions to Municipal Law.
● International Law is supreme.
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COUNTRIES THAT FOLLOW MONISM
USA – Article VI
● This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound
thereby, anything in the Constitution or Laws of any State to the
Contrary notwithstanding.
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Contd
● Germany – Article 25
● General rules of International law shall be an integral part of federal

land. They shall take precedence over the laws and directly create
rights and duties to the inhabitants.
● France – Article 55
● Treaties or agreements duly ratified or approved, upon their

publication have an authority superior to that of laws.
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DUALISM
● Dualism – For an international law to be implemented, the State

should pass a domestic legislation. Treaties or Conventions to be
implemented in a state must be made as Laws of the State.
● Oppenheim – International Law and Municipal law are in fact totally

different bodies of law which have nothing in common except that
they are both branches – but separate branches of the same tree.
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DUALISM
● Triepel, Anzilotti Moser, Hegel, Wenzel are the leading exponents
of the dualistic construction.
● ‘Triepel' treats the two systems of state law and international law as
entirely distinct in nature.
● He contends first that they differ in the particular social relations they
govern; state law deals with individuals, international law regulates
the relations between states, who alone are subject to it.
● Secondly, he argues, their juridical origins are different; the source of

municipal law is the will of the state (Common will of People) itself,
the source of international law is the common will (Gemeinwille) of
states.
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DUALISM
● Anzilotti
● For him international law and state law equally constitute two distinct
normative orders.
● "The former are binding by reason of the principle 'pacta sunt

servanda', and cannot be repealed except as laid down by international
law. The latter are binding by reason of the rule which enjoins
obedience to the legislature's prescriptions, and can only be repealed
in the manner provided by the public law of the particular community
concerned."
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Dualism – Judicial Approach
● Persuasive effect if not ratified
● Authoritative effect if ratified and implemented.
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In case of conflict????
● State must give due regard to both International law and municipal
law. In case of conflict between International law and Municipal law;
1. Must follow Municipal law.
2. If no law is laid down to determine dispute between

international law and municipal law, it is implied that they aspire to
follow monism. Hence, International law should be given primacy
over Municipal law.
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MONISM & DUALISM
● MONISM - under whose law international treaties are automatically

incorporated into the domestic legal system, and a State (dualist)
where there is no incorporation unless and until it is done by specific
act of the legislature. Therefore the generally recognized rules of
international law constitutes an integral part of the municipal law and
produce direct legal effect without any further law being enacted
within a country.
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INDIA????
● DUALISM
● Article 51 in The Constitution of India,
Promotion of international peace and security The State shall

endeavour 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 the
dealings of organised peoples with one another; and encourage
settlement of international disputes by arbitration.
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Contd
Article 253 of the Constitution of India
Legislation for giving effect to international agreements-
Notwithstanding anything in the foregoing provisions of this Chapter,

Parliament has power to make any law for the whole or any part of the
territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision made
at any international conference, association or other body
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Judicial approach
● West Bengal v. Kesoram Industries Ltd. And Ors , Appeal (civil)

1532 of 1993
● It is true that the doctrine of 'Monism' as prevailing in the European

countries does not prevail in India. The doctrine of 'Dualism' is
applicable. But, where the municipal law does not limit the extent of
the statute, even if India is not a signatory to the relevant International
Treaty or Covenant, the Supreme Court in a large number of cases
interpreted the statutes keeping in view the same.
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Treaty law in the USA
● LA Grand Case
● German nationals Walter and Karl LaGrand, who were arrested for
committing murder and other crimes in connection with an attempted
bank robbery in 1982 in the US state Arizona. In the following years,
the LaGrand brothers were tried, convicted and sentenced to death.
Undoubtedly, the US authorities had failed to notify the LaGrand
brothers of their right , protected by article 36 (1) of the Vienna
Convention on Consular Relations, to receive consular assistance
during the ensuing criminal trial.
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Contd
● The Court rejected USA’s Contention that there was no domestic law
in their country which provides for consular relations and held that
USA had violated Article 36(1) of Vienna Convention on Consular
relations by not informing the accused of their consular help. The
Court also held that USA cannot argue that lack domestic law as a
reason to violate International Law. USA being a monist country, a
treaty that is duly ratified will become there law of the land as they
follow the doctrine of monism/incorporation.
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Paquete Habana
● This appeal of a district court decree, which condemned two fishing
vessels and their cargoes as prizes of war, was brought by the owners
(D) of two separate fishing vessels. Each of the vessel running in and
out of Havana and sailing under the Spanish flag was a fishing smack
which regularly engaged in fishing on the coast of Cuba. Inside the
vessels were fresh fish which the crew had caught.
The owners of the vessels were not aware of the existence of a war
until they were stopped by U.S. (P) squadron. No incriminating
material like arms were found on the fishermen and they did not make
any attempt to run the blockade after learning of its existence not did
they resist their arrest. When the owners (D) appealed, they argued
that both customary international law and writings of leading
international scholars recognized an exemption from seizure at
wartime of coastal fishing vessels.
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Contd
● Coastal fishing vessels with their cargoes and crews are excluded
from prizes of war. The doctrine that exempts coastal fishermen with
their vessels and crews from capture as prizes of war.
● It is an established rule of international law that coastal fishing vessels

with their equipment and supplies, cargoes and crews, unarmed and
honestly pursuing their peaceful calling of catching and bringing in
fish are exempt from capture as prizes of war.
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Case Laws
● Jolly George Varghese and Anr. v. Bank of Cochin
● Facts
The judgement-debtor (appellants) suffered a decree against them in a
sum of Rs. 2.5 lakhs, wherein the respondent-bank was the
decree-holder. There were two other money decrees against the
appellants, the total sum payable by them amounting to over Rs. 7
lakhs.
In execution of the decree in question (arrears of Rs. 2.5 lakhs), a
warrant was issued to the appellants on 22-6-1972 for arrest and
detention in civil prison under Section 51 and Order 21 Rule 37 of the
Civil Procedure Code. There had earlier been a similar arrest warrant
for execution of the same decree.
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Facts
● Beside this process, the decree-holders had also proceeded against the
properties of the judgment-debtors and in consequence, all these
immovable properties had been attached for the purpose of sale in
discharge of the decree debts. It is stated that the execution court has
also appointed a Receiver for the management of the properties under
attachment. The enjoyment or even the power to alienate the
properties by the judgment-debtors has been forbidden by the court
direction keeping them under attachment and appointing a Receiver to
manage them. Nevertheless, the court has issued a warrant for arrest
because, on an earlier occasion, a similar warrant had been already
issued.
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ISSUES
● Whether it is justified to imprison a person merely for failure to

perform a contractual obligation (Article 11 of International
Covenant on Civil and Political Rights)?
● Whether it is fair to deprive a person of his personal liberty because

he has not fulfilled a contractual liability in the face of the
constitutional protection of life and liberty as expounded and
expanded by a chain of rulings of this Court beginning with Maneka
Gandhi's case?
● Whether Section 51 of the Civil Procedure Code has been complies

with in its rational meaning?
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Decision
● Article 11 of the Covenant on Civil and Political Rights - “No one shall
be imprisoned merely on the ground of inability to fulfil a contractual
obligation.”
● On the issue of International Law, it was held through various
examples that the remedy for the breach of an International Law
cannot be found in Municipal courts. This is because, for an
International law to become enforceable it must take up the form of a
Municipal law. The process involves the legislation on a law, drawing
inspiration from the International law and its objective so as to retain
the intended essence. Unless the International law takes a Municpal
form, it does not constitute a part of the ‘corpus juris’ of the State
(India).
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Activity
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DUALISM IN UK
● R v. Keyn
● The prisoner was indicted at the Central Criminal Court for

manslaughter. He was a foreigner and in command of a foreign ship,
passing within three miles of the shore of England on a voyage to a
foreign port; and whilst within that distance his ship ran into a British
ship and sank her, whereby a passenger on board the latter ship was
drowned. The facts of the case were such as to amount to
manslaughter by English law.
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Contd
● the Central Criminal Court had no jurisdiction to try the prisoner for
the offence charged.
● the admiral had no jurisdiction to try offences by foreigners on board

foreign ships, whether within or without the limit of three miles from
the shore of England.
● International Law - 3 miles principles not applicable.
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Trendtex Corporation v. Bank of Nigeria
● The Central Bank of Nigeria was incorporated in 1958 by a Nigerian

statute as a central bank modelled on the Bank of England. It issued
legal tender and acted as banker and financial adviser to the
Government of Nigeria. It also acted as banker for other banks and its
affairs were under considerable governmental control.
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Contd
● In July 1975 the Central Bank issued an irrevocable letter of credit for
over $14,000,000 in favour of the plaintiff, a Swiss company, to pay
for 240,000 tons of cement which the plaintiff had sold to an English
company.
● The cement was to be shipped to Nigeria where it was to be used to

build government barracks. The plaintiff shipped the cement to
Nigeria but there was congestion in the port of discharge and the
Central Bank declined to make payments claimed to be due for the
price and for demurrage.
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Contd
● The Court of Appeal, in allowing the plaintiffs' appeal, held that the
Bank was not entitled to governmental status, as it could not be
described as an “alter ego” of the state; Moreover, and in line with
contemporary trends in international law, sovereign immunity should
not extend to commercial transactions, and in that context no
distinction could be drawn between commercial and “governmental”
transactions until the law was altered by act of Parliament or by
decision of the House of Lords.
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UNIT 4 – LAW OF TREATIES
● Concept of Treaty – Pacta Sunt Servanda, Rebes sic stantibus
● Treaty-making (negotiations, signature, reservations - Vienna

Convention on the Law of Treaties)
● Interpretation, Modification and Amendment of Treaties
● Invalidity, Termination and Suspension of Treaties.
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Treaty
● Vienna Convention on Law of treaties, 1969 came into force in 1980.
● Principles of free consent and of good faith and pacta sunt servanda
rule are universally observed.
● VCLT- is a treaty on treaties
● Applies to treaties between states
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What is a treaty????
● Article 2 (1) (a) of the 1969 Vienna Convention on the Law of Treaties.
● "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."
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Basics of Treaties
● Written form
● Between states
● No prescribed format
● Non- retroactivity.
● VCLT- not applicable:-
● Treaties between states and international organisation

● Questions of state succession
● Effect of war on treaties
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Treaties between states and international orgs
● Vienna Convention on the Law of Treaties between States and

International Organizations or Between International Organizations
(VCLTIO), 1986
● Article 85 of the Convention provides that it enters into force after the
ratification by 35 states (international organizations may ratify, but
their ratification does not count towards the number required for entry
into force). As of February 2019, the treaty has been ratified by 32
states and 12 international organizations. As a result, the
Convention is not yet in force.
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Terminologies
● Signature
● Ratification
● Full power
● Pleni-potentiary
● Accession
● Pacta Sunt Servanda
● Res sic standibus
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Formalities
● No prescribed form or formalities. It is left to the discretion of the

parties.
● U.S- President with the aid and consent of the Senate and the
concurrence of 2/3rd of the Senate.
● U.K- Crown
● But there can be treaties related to trade which may be signed by

government heads or heads of State.
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Full Power - Meaning
● 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.
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Full Powers –A.17
● 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..
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Contd
● 17 (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.
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Consent
● Article 9. ADOPTION OF THE 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.
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Consent
● Consent by signature – not significant these days

● To lessen the burden on governments
● Applicable only to less politicised treaties.
● But if there is a condition in the treaty or convention itself as to how a
treaty or a convention can be accepted, then such procedure will
apply.
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Consent
● Consent by exchange of instruments
● Article 13
● The consent of States to be bound by a treaty constituted by

instruments ex changed between them is expressed by that exchange
when:
● (a) The instruments provide that their exchange shall have that effect;
or
● (b) It is otherwise established that those States were agreed that the
exchange of instruments shall have that effect.
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Consent
● Consent by ratification
● Delay between signature and ratification is helpful to consider the

treaty.
● Monism and dualism - RATIFICATION
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Consent
● Ratification
● Article 14
1. The consent of a State to be bound by a treaty is expressed by
ratification when:
(a) The treaty provides for such consent to be expressed by means of
ratification;
(b) It is otherwise established that the negotiating States were agreed
that ratification should be required;
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RATIFICATION
● 14(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.
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Consent Through ACCESSION
● Article 15. CONSENT TO BE BOUND BY A TREATY

EXPRESSED BY ACCESSION WHEN
(a) The treaty provides that such consent may be expressed by that
State by means of accession;
(b) It is otherwise established that the negotiating States were agreed

that such consent may be expressed by that State by means of
accession; or
(c) All the parties have subsequently agreed that such consent may be
expressed by that State by means of accession.
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RESERVATION
● 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.
● Reservation – refusal to accept certain provisions
● Accepts the rest of the treaty
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Why Reservations ?
● To encourage states to become parties to the Convention
● To increase the number of ratifications
● If states are allowed to reserve articles, there can be maximum

participation.
● Reservations are provided basically because of the various differences

that exist between states.
● As a principle to uphold of Sovereignty.
● To avoid conflict with domestic laws.
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When reservation is problematic?
● Reservation in bilateral treaty is not possible.
● Reservation is possible only in Multi-lateral treaties.
● Reservations might dilute the treaty.
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Procedure under VCLT for Reservation
● Article 19 - FORMULATION OF RESERVATIONS
A State may, when signing, ratifying, accepting, approving or

acceding to a treaty, formulate a reservation unless:
(a) The reservation is prohibited by the treaty;
(b) The treaty provides that only specified reservations, which do not
include the reservation in question, may be made; or
(c) In cases not falling under sub-paragraphs (a) and (b), the
reservation is incompatible with the object and purpose of the treaty.
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Article 20 - ACCEPTANCE OF AND OBJECTION TO RESERVATIONS
20(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.
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Contd
● 20 (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.
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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 23 (Procedure):
(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.
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Contd
● 21(4) - 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.
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An example
● Vienna Convention on Diplomatic Relations, 1961
● Libyan Reservation to check the bags of diplomats with the consent of

the other state.
● England did not oppose to this reservation.
● So, it is implied that England also could do the same with Libyan
diplomat bags.
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INDIA and RESERVATION
● Genocide Convention 1948
● Article 9 of the convention states that the disputes shall be heard by

ICJ. But India made a reservation so as to restrict its implication.
● With reference to Article IX of the Convention, the Government of

India declares that, for the submission of any dispute in terms of this
article to the jurisdiction of the International Court of justice, the
consent of all the parties to the dispute is required in each case.
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Doctrines governing Reservation
● Compatible Doctrine
● Unanimous Consent doctrine
● Back to Compatible doctrine
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Withdrawal of Reservation
● Article 22
1. Unless the treaty otherwise provides, a reservation may be

withdrawn at any time and the consent of a State which has accepted
the reservation is not required for its withdrawal.
2. Unless the treaty otherwise provides, an objection to a reservation

may be withdrawn at any time
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Contd
● 22 (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.
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Article 23 – Procedure to make Reservation
● Reservation and objection to reservation to be in writing.
● Reservation made during signing a treaty but is subjected to

ratification, then reservation must formally be consented before
ratification.
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When treaty comes into force????
● Article - 24
● Treaty will come into force on the date that is fixed by the negotiating
states.
● If no such date is fixed by the states in the treaty, it comes into force
after the consent of all the negotiating parties.
● When a state accedes to a treaty, the treaty will be enforced on that

state on the date the state has acceded to it.
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Interpretation of Treaties
● A.26 – Pacta Sunt Servanda
“Every treaty in force is binding upon the parties to it and must be

performed by them in good faith.”
According to Anzilloti, the binding force of International Law is

based on the Fundamental principles known as Pacta Sunt Servanda
which means that the agreement entered into by the States must be
followed by them in good faith. According to this doctrine, the parties
to a treaty are bound to observe its terms in good faith.
Jus Cogens as a limitation to Pacta Sunt Servanda
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Interpretation of Treaties
GENERAL RULE OF INTERPRETATION Article 31
1. A treaty shall be interpreted in good faith in accordance with the

ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall

comprise, in addition to the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all
the parties in 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.
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Contd
31 (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.
4. A special meaning shall be given to a term if it is established that
the parties so intended.
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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.
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Article 33 - INTERPRETATION OF TREATIES AUTHENTICATED IN

TWO OR MORE LANGUAGES
33 (1) - When a treaty has been authenticated in two or more

languages, the text is equally authoritative in each language, unless
the treaty provides or the parties agree that, in case of divergence, a
particular text shall prevail.
The treaty shall have equal value in all languages.
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Amendment and Modification
● When few parties try to change the terms of the treaties and such
changes is effecting only those parties, then it is termed as
modification.
● When all the parties to a treaty or convention agree to change the

terms of the treaty, it is considered as amendment. Amendment is
applicable to all the states.
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Amendment – Article 40
40 (1) If the treaty does not provide for the amendment procedure,
this provision is applicable.
(2) Proposal to amend a treaty should be made known to all the

contracting parties and they have right to express their opinion;
(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.
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Contd
40 (3) All states are entitled to be parties to the amended treaty.
40 (4) But there is no rule that all the parties of the unamended treaty
shall become parties to the amended treaty.
40(5) Any state which becomes party to the treaty after the treaty is
amended, such a state is bound by the amended treaty unless
otherwise provided.
(a) – If expressly not provided, a newly contracting party will be

considered as a party to the amended treaty.
(b) – be considered as a party to the unamended treaty for those
states who have not consented for the amended treaty.
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Modification – Article 41
Article 41 (1) - Two or more parties may modify the treaty terms
between them if;
(a) – if such modification is allowed in the treaty.

(b) – the modification is not prohibited by the treaty and;
(i) – such modification does not affect the rest of the

parties.
(ii) – such modification is not against the object and
intention of the treaty.
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Invalidity/ Suspension/ Withdrawal/Termination
● Differences between Suspension and Termination
● Article – 42
(1) The validity of a treaty or of the consent of a State to be bound by a

treaty may be impeached only through the application of the present
Convention.
(2) The termination of a treaty, its denunciation or the withdrawal of a

party, may take place only as a result of the application of the
provisions of the treaty or of the present Convention. The same rule
applies to suspension of the operation of a treaty.
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Article 43 - OBLIGATIONS IMPOSED BY INTERNATIONAL LAW

INDEPENDENTLY OF A TREATY
● The invalidity, termination or denunciation of a treaty, the withdrawal

of a party from it, or the suspension of its operation, as a result of the
application of the present Convention or of the provisions of the
treaty, shall not in any way impair the duty of any State to fulfill any
obligation embodied in the treaty to which it would be subject under
international law independently of the treaty.
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INVALIDITY OF TREATIES
● Article 46 – Consent was given in violation of internal law. A treaty

cannot be invalidated for the same unless the violation is concerned
with the fundamental internal law of the country.
● Article 47- Consent was subjected to restrictions and such restrictions

was not expressed by the representative. A treaty cannot be
invalidated on this ground unless such restriction was made known to
the negotiating parties before giving consent.
● Article 48 – Error in the treaty can be invoked as a reason to

invalidate a treaty provided that such an error relates to fact or a
situation that existed at the time of the formation of treaty.
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Invalidity - Contd
● Article 49 – Fraud
● Article 50 – Corruption
● Article 51 – Coercion of a representative of a State
● Article 51 – Coercion of a State by threat or by use of force
● Article 52 – If treaty is against pre-emptory norm. Pre-emptory norms

can be replaced only by new pre-emptory norms.
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Termination and Suspension
Article – 54
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.
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● Article 55. REDUCTION OF THE PARTIES TO A

MULTILATERAL TREATY BELOW THE, NUMBER
NECESSARY FOR ITS ENTRY INTO FORCE
Unless the treaty otherwise provides, a multilateral treaty does not

terminate by reason only of the fact that the number of the parties falls
below the number necessary for its entry into force.
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WHEN TREATY IS SILENT ON TERMINATION

/WITHDRAWAL
● Article 56
1. A treaty which contains no provision regarding its termination and

which does not provide for denunciation or withdrawal is not subject
to denunciation or withdrawal unless:
(a) It is established that the parties intended to admit the possibility of

denunciation or withdrawal; or
(b) A right of denunciation or withdrawal may be implied by the
nature of the treaty.
2. A party shall give not less than twelve months' notice of its
intention to denounce or withdraw from a treaty under paragraph 1.
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Article 57. SUSPENSION OF THE OPERATION OF A TREATY
● The operation of a treaty in regard to all the parties or to a particular

party may be suspended:
(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.
Article – 58
Suspension of multi-lateral treaty between one or more states.
It does not affect the relations of other parties inter se.
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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 in tended that the matter should be governed by that treaty;
(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.
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Article 60 - TERMINATION OR SUSPENSION OF THE OPERATION OF

A TREATY AS A CONSEQUENCE OF ITS BREACH
1. A material breach of a bilateral treaty by one of the parties entitles
the other to invoke the breach as a ground for terminating the treaty or
suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties

entitles:
(a) The other parties by unanimous agreement to suspend the

operation of the treaty in whole or in part or to terminate it either:
(i) In the relations between themselves and the defaulting State, or
(ii) As between all the parties;
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● Article 61 - Supervening Impossibility of Performance
● Article 62 – Res Sic Standibus
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Article 62. FUNDAMENTAL CHANGE OF CIRCUMSTANCES
1. A fundamental change of circumstances which has occurred with

regard to those existing at the time of the conclusion of a treaty, and
which was not foreseen by the parties, may not be invoked as a
ground for terminating or withdrawing from the treaty unless:
(a) The existence of those circumstances constituted an essential basis

of the consent of the parties to be bound by the treaty; and
(b) The effect of the change is radically to transform the extent of

obligations still to be performed under the treaty.
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Contd
● 2. A fundamental change of circumstances may not be invoked as a

ground for terminating or withdrawing from a treaty:
(a) If the treaty establishes a boundary; or
(b) If the fundamental change is the result of a breach by the party

invoking it either of an obligation under the treaty or of any other
international obligation owed to any other party to the treaty.
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Article 63. SEVERANCE OF DIPLOMATIC OR CONSULAR

RELATIONS
(1) The severance of diplomatic or consular relations between parties

to a treaty does not affect the legal relations established between them
by the treaty except in so far as the existence of diplomatic or consular
relations is indispensable for the application of the treaty.
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Article 64. EMERGENCE OF A NEW PRE - EMPTORY NORM OF

GENERAL INTERNATIONAL LAW ("JUS COGENS")
(1) If a new peremptory norm of general international law emerges,

any existing treaty which is in conflict with that norm becomes void
and terminates.
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UNIT - 5
● Statehood and Recognition
● Subjects of international law: Individuals, States; International

Organizations; Non State Entities; Entities Sui Generis,
● Definition and Incidence of Statehood; Rights and Duties of States;

Recognition – Theories, Modes, Effects of Recognition.
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Subjects of International Law
● A subject of international law is an entity possessing international

rights and obligations and having the capacity
(a) to maintain its rights by bringing international claims; and
(b) to be responsible for its breaches of obligation by being subjected

to such claims.
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Theories
Realist
theory -
States
Fictional
theory -
Individuals
Functional theory –
States and individuals
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Realist theory
Traditional theory supported by Corbett.
States are subjects of the International Law.
Individuals lack any judicial personality under

International Law because they do not have rights
or duties under it.
States are subjects of International Law. Individual

people are objects of it.
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FICTIONAL THEORY
Kelsen and Westlake supports this theory.
League of Nations supports this theory.
Universal Declaration of Human Rights, Convention on

the Settlement of Investment Disputes between States
and Nationals of other States etc. are examples for the
recognition of individuals in international law.
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Functional theory
This is a modern theory and coordinates the

prior two theories.
● Reparation case
According to this, legal functionality is given

to those who have the capability to perform
legal functions internationally.
The United Nations Organization is a juristic

person and not a State. It is often considered as
a 'Super State'.
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States
States are the original subjects of international law –

i.e. international law was created to regulate relations
between States.
International Law is primarily concerned with the

rights, duties and interests of States.
The moment an entity becomes a State (once a state

gets statehood), it becomes an international legal
person and acquires international legal personality.
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STATEHOOD
● Article 1 of Montevideo Convention on Rights and Duties of States,

1933
1. a permanent population - no specific number
2. a defined territory
3. government
4. capacity to enter into relations with other states.
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Recognition of State
● Constitutive theory – Should be recognised by other states
● Declaratory theory – automatically becomes a state.
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Extinction of Statehood
● Merger
● Absorption or annexation
● Dismemberment of an existing state.
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Individuals
● Fictional Theory – objective of PIL is to serve humans.
● Status of Individuals in International Law
● Human Rights
● Treaty of Versailles, 1919 – Article 304 (b)

○ Individuals of Allied and associated powers can bring in cases against Germany
before Mixed Arbitration Tribunal.
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Other Conventions
● European Convention on Human Rights, 1950

● Optional Protocol of ICCPR, 1966
● The International Convention for the Elimination of all forms of
discrimination, 1965
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International organizations
● Reparation case
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Non state actors
● Inter-Governmental organisation
○ FAO
○ ILO
○ WIPO
● MNC
● International NGO
○ Amnesty international
○ Red Cross
• SUI GENERIS SYSTEM
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STATEHOOD
● Article 1 of Montevideo Convention on Rights and Duties of States,

1933
1. a permanent population - no specific number
2. a defined territory
3. government
4. capacity to enter into relations with other states.
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RECOGNITION
● De jure recognition - cannot be withdrawn
● De facto recognition – can be withdrawn.
Functions of formal recognition:
1. Acceptance as a state
2. Establishment of legal relations
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How can a State recognise other state?
● Entering into treaty
● Formal message
● Exchange of diplomats
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Is a State bound to recognise?
● NO
● Recognition is a political act and there is no legal duty for a state to

recognise.
● The Problem of Recognition in the Science of International Law. The

majority of writers still adhere to the view that the act of recognition
as such is not a matter governed by law, but a question of policy.
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Differences
De Facto Recognition De Jure Recognition
De facto recognition is a provisional and

De jure recognition is legal recognition.
factual recognition.
De facto recognition is granted when there is De jure recognition is granted when the state
the fulfilment of the essential conditions of fulfils all the essential condition of states
statehood. along with sufficient control and permanency.
De facto recognition is a primary step De jure recognition can be granted either

towards grant of de jure recognition. with or without grant of de facto recognition.
De facto recognition can either be conditional De jure recognition is a final and

or non-conditional. non-conditional recognition
De facto recognition is revocable in nature. De jure recognition is non-revocable.
The state with de facto cannot undergo state The state with de jure recognition can under
succession. state succession.
The state with de facto recognition cannot The state with de jure recognition enjoys full
enjoy full diplomatic immunities. diplomatic immunities.
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India and Recognition
Country Independence Recognition
Afghanistan 1st may 1971 2nd may 1978
Bangladesh 26th March, 1971 6th December 1971
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Recognition
● Montevideo Convention, 1933
● ARTICLE 3
The political existence of the state is independent of recognition by

the other states.
● ARTICLE 6
The recognition of a state merely signifies that the state which

recognizes it accepts the personality of the other with all the rights
and duties determined by international law. Recognition is
unconditional and irrevocable.
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● ARTICLE 7
The recognition of a state may be express or tacit. The latter results

from any act which implies the intention of recognizing the new state.
● ARTICLE 8
No state has the right to intervene in the internal or external affairs of

another.
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DRAFT DECLARATION ON RIGHTS AND DUTIES OF STATES,

1949
● Article 1 – Right to Independence
Every State has the right to independence and hence to exercise

freely, without dictation by any other State, all its legal powers,
including the choice of its own form of government.
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Article 2
● Every State has the right to exercise jurisdiction over its territory and
over all persons and things therein, subject to the immunities
recognized by international law.
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Article 3
● Every State has the duty to refrain from intervention in the internal or
external affairs of any other State.
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Article 4
● Every State has the duty to refrain from fomenting civil strife in the
territory of another State, and to prevent the organization within its
territory of activities calculated to foment such civil strife.
● Foment - Incite
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Article 5
● Every State has the right to equality in law with every other State.
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Duties - Article 6
● Every State has the duty to treat all persons under its jurisdiction with
respect for human rights and fundamental freedoms, without
distinction as to race, sex, language, or religion.
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Article 7
● Every State has the duty to ensure that conditions prevailing in its
territory do not menace international peace and order.
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Article 8
● Every State has the duty to settle its disputes with other States by
peaceful means in such a manner that international peace and security,
and justice, are not endangered.
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Article 9
● Every State has the duty to refrain from resorting to war as an

instrument of national policy, and to refrain from the threat or use of
force against the territorial integrity or political independence of
another State, or in any other manner inconsistent with international
law and order.
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Article 10
● Every State has the duty to refrain from giving assistance to any State
which is acting in violation of article 9, or against which the United
Nations is taking preventive or enforcement action.
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Article 11
● Every State has the duty to refrain from recognizing any territorial
acquisition by another State acting in violation of article 9.
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Article 12
● Every State has the right of individual or collective self-defence

against armed attack.
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Article 13
● Every State has the duty to carry out in good faith its obligations
arising from treaties and other sources of international law, and it may
not invoke provisions in its constitution or its laws as an excuse for
failure to perform this duty.
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Article 14
● Every State has the duty to conduct its relations with other States in
accordance with international law and with the principle that the
sovereignty of each State is subject to the supremacy of international
law.
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Insurgency
● Insurgency means rebellion, riot or mutiny by portion of the citizens

of a State against the established government. It indicates armed
struggle by dissident forces against the established government in a
state.
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Insurgency
● The Conditions for recognition of insurgents
● Some essential conditions for recognition of insurgency can be listed

as follows:
● a) The insurgents need to have control over a considerable part of the

territory;
● b) Most of the people living in the territory must support the rebels for
their own accord and not as a result of the enforcement actions taken
by the insurgents;
● c) The insurgents must be able and willing to comply with
international obligations.
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Belligerency
● On the other hand 'Belligerent signifies a stage of the civil war in

which there are two contenders for power that can be placed on a
platform and there is something like a state of war, and not only civil
conflicts.
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● The Conditions for Recognition of belligerency are as follows:
● 1) There should exist within the state a status of armed conflict

● 2) The belligerents must administer and occupy a major portion of
national territory
● 3) The hostilities must be conducted in accordance with the rules of
war and through organized armed forces acting under a responsible
authority.
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DIFFERENCES
INSURGENCY BELLIGERENCY
Internal conflict inside a territory Conflict for power between two

against the established government. hostile groups.
Civil strafes to be regulated by the State of war regulated y the

internal domestic law international law
Not a subject of international law. Can be subject of international law

if recognized.
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Consequences
● LEGAL CONSEQUENCES OF RECOGNITION TO THE

BELLIGRENTS
● 1. One of the legal consequences of the recognition is that the laws
and customs of war can be applied to the insurgents or belligerents
and the legitimate government. It includes Protection of civilians
against internal armed conflicts and Provision of rights to the
belligerent’s soldiers against each other.
● 2. The protection and security of civilians against internal armed
conflicts is dealt by the Additional Protocol II to the Geneva
Conventions of 1949, of 1977. This convention sets standard
regulations prohibiting the belligerents of intentionally causing
civilian casualties on the other side.
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● 3. Using poisoned weapons on arms as projectiles that cause

suffering are prohibited.
● 4. The belligerents can have bilateral trade with the recognizing state
● 5 .The belligerents can enter into treaties with the recognizing state.
● 6. A recognized belligerent state becomes entitled to sue in courts of
the recognised state.
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Article I of the 1907 Annex to the Hague Convention (IV)

Respecting the Laws and Customs of War on Land
(1) To be commanded by a person responsible for his subordinates;

(2) To have a fixed distinctive emblem recognizable at a distance;
(3) To carry arms openly; and
(4) To conduct their operations in accordance with the laws and customs of war
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UNIT – 6 STATE TERRITORY AND STATE

SUCCESSION
● State Territory is an attribute of statehood. There will be no state
without a territory. The sovereignty of the state can be exercised in its
territory.
● State territory includes
● Land Territory
● National Waters
● Territorial Sea
● Air Space
● Subsoil under earth
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Contd
● Oppenheim:
● State Territory is the space within which the State exercises its
supreme authority.
● Territory of the state is the property of that state
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MODES OF ACQUISITION
● Cession
● Occupation
● Accretion
● subjugation, and
● prescription.
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CESSION
● Cession of the state territory is the transfer of sovereignty over state
territory by the owner state to another state.
● The cession may comprise a portion of the territory of the ceding

State or the totality of its territory.
● Cession is the transfer of territory usually by treaty from one state to

another.
● And since cession is a bilateral transaction, the parties involved are

states.
● The cession of territory maybe voluntary or maybe under compulsion

as a result of war. The act of cession maybe even in the nature of a
gift, sale, exchange or lease.
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OCCUPATION
● When a particular territory is not under the authority of any other

state, a state can establish its sovereignty over such territory by
occupation.
● The territory may never have belonged to any state, or it may have
been abandoned by the previous sovereign.
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Contd
● The PCIJ( permanent court of international justice) held that the
occupation to be effective must consist of the following two elements
(i) intention to occupy. Such intention must be formally expressed and
it must be permanent.
(ii) occupation should be peaceful, continuous.
There mere act of discovery by one state is not enough to confer a

title by occupation. There are two requirements
● (i) the territory subject to claim must not be under the sovereignty of
any state ( terra nullius)
● (ii) the state must have effectively occupied the territory.
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Contd
● There are two elements of effective occupation.
● One is the intention and will to act as sovereign (animus), and
● Second one is the peaceful and continuous display of state authority

(factum).
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ACCRETION
● Accretion refers to the physical expansion of an existing territory

through the geographical process. It is the name for the increase of
land due to some new formations.
● It is a customary rule of international law that enlargement of

territories by new formations, takes place ipso facto by accretion,
without the state concerned taking any special step for the purpose of
extending its sovereignty.
● Hence, accretion too is a direct mode of acquisition of territory.
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SUBJUGATION
● Subjugation means to incorporate (territory) into the domain of a

country. Subjugation is a unilateral act where territory is seized by
one state.
● Subjugation is the acquisition of territory by conquest followed by

annexation. This direct mode of acquisition is often called title by
conquest.
● Waging of wars
● The new sovereign is the successor of the former.
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Prescription
● It means continued occupation over a long period of time by one state

of territory actually and originally belonging to another state.
● Requirements of prescription
● (i) the possession must be peaceful
● (ii) the possession must be for a long period of time.
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Contd
● Prescription is the acquisition of territory which belonged to another

state, where as occupation is acquisition of terra nullius.
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Modes of loss of State territory
● CESSATION
● REVOLT
● DERELICTION/RENUNCIATION
● OPERATION OF NATURE
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STATE SUCCESSION
● Where one states succeeds the other.
● According to Professor Starke, the term "State Succession" means

transmission of rights and obligations from States which have altered
or lost their identity to other States or entities, such alteration or loss
of identity to other State or entities, occurring primarily when
complete or partial changes of sovereignty takes place over portions
of territory.
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Contd
● Under Article 2 of the Vienna Convention, 1983, on Succession of

States, it has been defined that Succession of States means the
replacement of one State by another in the responsibility for the
international relations of territory.
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Contd
● TYPES
● Universal Succession – whole territory is lost or destroyed.

○ Subjugation
○ Voluntary merger
○ Cessation/dismemberment/Break up
● Partial Succession – surrenders some part of territory but retains

personality and legal responsibility.
○ Cession – when some part is surrendered.
○ Achieving Independence
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Consequences – Rights and obligations
● Treaties
● Where a State merges voluntarily into another State or where it is

subjugated by another State, the Successor State remains one and the
same International Person, while the predecessor State which has
merged or been subjugated becomes totally extinct as an International
Person.
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Membership
● Membership of the International organizations and the obligations

incidental thereto do not pass to a successor State.
● India and Pakistan - UNO
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Public Property
● When one State Succeeds de facto to another, it succeeds to all the

public and proprietary rights of the extinct State.
● The successor State takes all the assets of the vanquished State,
including such assets as State funds, funds invested abroad, movable
and immovable property.
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Private Property
● No changes.
● The rights of the individuals over their property remains the same.
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Private laws
● Remains the same until abrogated.
● CONTRACTUAL LIABLITY – Unless otherwise provided,

successor state is liable for all the contracts.
● TORTS- No liability
● Nationality – changed to the successor state.
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UNIT 7
STATE JURISDICTION AND RESPONSIBILITY
● PIL – Sovereignty and equality of states
● Corollaries of sovereignty and equality of states are
○ Jurisdiction over territory and its population

○ Duty of non-intervention in the area of exclusive jurisdiction
○ Honouring customary law and enforcing the treaty law on consent.
S.S LOTUS CASE AND JURISDICTION
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State Jurisdiction Principles
1. Territorial Principle (Place of crime scene)
2. Nationality Principle (Person committing the crime)
3. Protective Principle (National interest that is injured by the offence)
4. Universality Principle (Custody of person committing the crime)
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Territorial Principle
● A state has the primary jurisdiction over all events taking place in its
territory regardless of the nationality of the person responsible.
● S.S Lotus case
● Subjective territorial principle
● Objective territorial principle
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Nationality principle
● Nationality Principle allows state to exercise jurisdiction over its

nationals for crimes committed elsewhere in the world. It is based on
personal link between accused & the state claiming jurisdiction.
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Protective Principle
● State may exercise jurisdiction over an alien who commits an act

abroad but prejudicial against the State’s security & interest.
● Protective principle is based on “Effect Doctrine”, whereby States

enacted legislation to give themselves jurisdiction over any matters
producing “effect” in their territory.
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Universality Principle
● Allow States to punish international crimes regardless of territorial or

nationality link with the perpetrator or his victim.
● Genocide
● Torture
● Slavery
● War crimes
● Crimes against humanity
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Immunities from jurisdiction
● Sovereign Immunity
■ Absolute Immunity
■ Restrictive Immunity
○ Trendtex Corporation v. Central Bank of Nigeria
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Diplomatic and Consular immunity
● Diplomatic relations have traditionally been conducted through the

medium of ambassadors.
● With the advent of technology, the burden that was there on the
ambassadors has been reduced.
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Vienna Convention on Diplomatic Relations, 1961
● Came into force in 1964.
● Article 2
● The establishment of diplomatic relations between States, and of

permanent diplomatic missions, takes place by mutual consent.
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Article 3
1.The functions of a diplomatic mission consist, inter alia, in:

(a) Representing the sending State in the receiving State;
(b) Protecting in the receiving State the interests of the sending State
and of its nationals, within the limits permitted by international law;
(c) Negotiating with the Government of the receiving State;
(d) Ascertaining by all lawful means conditions and developments in
the receiving State, and reporting thereon to the Government of the
sending State;
(e) Promoting friendly relations between the sending State and the
receiving State, and developing their economic, cultural and scientific
relations.
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Article 27 - immunities
● The diplomatic bag shall not be opened or detained.
● The diplomatic courier with the valid seal also enjoys the same
protection.
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Article 29
● The person of a diplomatic agent shall be inviolable. He shall not be

liable to any form of arrest or detention.
● The receiving State shall treat him with due respect and shall take
all appropriate steps to prevent any attack on his person, freedom or
dignity.
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Article 30
1.The private residence of a diplomatic agent shall enjoy the same

inviolability and protection as the premises of the mission.
2.His papers, correspondence and his property, shall likewise enjoy

inviolability.
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Article 31
1.A diplomatic agent shall enjoy immunity from the criminal jurisdiction
of the receiving State. He shall also enjoy immunity from its civil and
administrative jurisdiction, except in the case of:
(a) A real action relating to private immovable property situated in
the territory of the receiving State, unless he holds it on behalf of the
sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is
involved as executor, administrator, heir or legatee as a private person
and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving State outside his
official functions.
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Contd
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic

agent except in the cases coming under subparagraphs (a), (b) and (c)
of paragraph 1 of this article, and provided that the measures
concerned can be taken without infringing the inviolability of his
person or of his residence.
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Contd
4.The immunity of a diplomatic agent from the jurisdiction of the

receiving State does not exempt him from the jurisdiction of the
sending State.
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Article 32 – Waiver of Immunity
1.The immunity from jurisdiction of diplomatic agents and of persons

enjoying immunity under article 37 may be waived by the sending
State.
2.Waiver must always be express
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Other Privileges - 34
● No taxes can be levied. Only indirect taxes.
● Tax on his private property but not on the property he holds for the
State.
● Registration and court fees may be levied if such transfer of property

is not carried on behalf of the sending state.
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Vienna Convention on Consular Relations, 1963
Came into force in 1967

Article 2 Establishment of consular relations
1.The establishment of consular relations between States takes place by

mutual consent.
2.The consent given to the establishment of diplomatic relations between

two States implies, unless otherwise stated, consent to the
establishment of consular relations.
3.The severance of diplomatic relations shall not ipso facto involve the
severance of consular relations.
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Article 31- Inviolability of consular premises
● Authorities of the receiving State shall not enter the consular premises
unless they have taken prior permission from the head counsel or his
designee or by the diplomatic head of the mission.
● Emergency – authorities can enter without permission
● Grave crime – detain the authorities
● Exempt from civil and criminal liabilities
● No taxes can be levied.
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State Responsibility
● Responsibility of States for Internationally Wrongful Acts , 2001
● Article 1 - Every internationally wrongful act of a State entails the

international responsibility of that State.
● Article 2 - Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct

consisting of an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.
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Chapter II – Attributes of Conduct to a State
● Article - 4
● 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.
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Article - 5
Conduct of persons or entities exercising elements of governmental

authority
● The conduct of a person or entity which is not an organ of the State

under article 4 but which is empowered by the law of that State to
exercise elements of the governmental authority shall be considered
an act of the State under international law, provided the person or
entity is acting in that capacity in the particular instance.
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Article 8
● Conduct directed or controlled by a State
● The conduct of a person or group of persons shall be considered an act

of a State under international law if the person or group of persons is
in fact acting on the instructions of, or under the direction or control
of, that State in carrying out the conduct.
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Article 9
● Conduct carried out in the absence or default of the official authorities
● Any person performing governmental functions but there is absence

or default of official authorities..
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Article 11
● Conduct acknowledged and adopted by a State as its own
● Conduct which is not attributable to a State under the preceding

articles shall nevertheless be considered an act of that State under
international law if and to the extent that the State acknowledges and
adopts the conduct in question as its own.
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Unit 8 – Law of Sea
● 17th century – Freedom of seas doctrine
● Circumstances changed. So, did the law.
● The law of the sea is a body of customs, treaties, and international

agreements by which governments maintain order, productivity,
and peaceful relations on the sea.
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UNCLOS - 1
● The First United Nations Conference on the Law of the Sea

(UNCLOS I)1958. UNCLOS I adopted the four conventions, which
are commonly known as the 1958 Geneva Conventions:
● The Convention on the Territorial Sea and Contiguous Zone;
● The Convention on the High Seas;
● The Convention on Fishing and Conservation of the Living Resources
of the High Seas; and
● The Convention on the Continental Shelf.
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UNCLOS - 2
● The Second United Nations Conference on the Law of the Sea

(UNCLOS II) from March 17 until April 26, 1960. UNCLOS II did
not result in any international agreements. The conference failed to fix
a uniform breadth for the territorial or establish consensus on
sovereign fishing rights.
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UNCLOS III
● The Third United Nations Conference on the Law of the Sea

(UNCLOS III) from 1973 to 1982.
● Over 160 nations participated in the 9-year convention, which finally

came into force on November 14, 1994, 21 years after the first
meeting of UNCLOS III and one year after ratification by the sixtieth
state. The first sixty ratifications were almost all developing states.
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Contd
● A major feature of the convention included the definition of maritime

zones- the territorial sea, the contiguous zone, the exclusive economic
zone, the continental shelf, the high sea, the international sea-bed area
and archipelagic waters.
● The convention also made provision for the passage of ships,

protection of the marine environment, freedom of scientific research,
and exploitation of resources.
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UNCLOS - I
● 86 States participated in the conference.
● The Convention on the Continental Shelf
● Article 1
● " continental shelf " is used as referring
● to the seabed and subsoil of the submarine areas adjacent to the coast
but outside the area of the territorial sea, to a depth of 200 meters.
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Contd
● Article 2
● 1. The coastal State exercises over the continental shelf sovereign

rights for the purpose of exploring it and exploiting its natural
resources.
● 2. The rights referred to in paragraph 1 of this article are exclusive in

the sense that if the coastal State does not explore the continental shelf
or exploit its natural resources, no one may undertake these activities,
or make a claim to the continental shelf, without the express consent
of the coastal State.
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CONVENTION ON THE TERRITORIAL SEA AND

THE CONTIGUOUS ZONE. DONE AT GENEVA,
ON 29 APRIL 1958
Article - 1
● 1. The sovereignty of a State extends, beyond its land territory and its
internal waters, to a belt of sea adjacent to its coast, described as the
territorial sea.
● Article – 2 - Airspace above territorial waters.

● Article – 3
● Except where otherwise provided in these articles, the normal baseline

for measuring the breadth of the territorial sea is the low-water line.
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Contd
● Baseline method
● Article – 12 – Equidistance principle
● Article – 14 – Right to innocent passage
● Article – 15 – Notice to be given if there are any threats in the

territorial waters.
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Contiguous Zone
● The state shall in contiguous zone;
(1) Prevent infringement of its customs. fiscal, immigration or

sanitary regulations within its territory or territorial sea;
● (b) Punish infringement of the above regulations committed within its
territory or territorial sea.
● 2. The contiguous zone may not extend beyond twelve miles from the
territorial waters.
● Equidistance principle.
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Convention on the High Seas.
● Article 1
● The term "high means of Sea that are not included in the territorial sea
or in the internal waters of a State.
● Article 2
● Freedom of high seas is exercised under the costal state or by any
other state as;
● (1) Freedom of navigation;
● (2) Freedom of fishing;
● (3) Freedom to lay submarine cables and pipelines;
● ( 4) Freedom to fly over the high seas.
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Article - 12
● Collision
● Nationality of the master or the flying flag national shall be

considered to determine jurisdiction.
● Laws may be made to prevent
■ Piracy
■ Pollution
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UNCLOS III
● Part II
● Territorial waters and Contiguous Zone
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Contd
● Article 2 Legal status of the territorial sea, of the air space over the
territorial sea and of its bed and subsoil
1. The sovereignty of a coastal State extends, beyond its land territory

and internal waters and, in the case of an archipelagic State, its
archipelagic waters, to an adjacent belt of sea, described as the
territorial sea.
2. This sovereignty extends to the air space over the territorial sea as
well as to its bed and subsoil.
3. The sovereignty over the territorial sea is exercised subject to this

Convention and to other rules of international law.
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Contd
● SECTION 2. LIMITS OF THE TERRITORIAL SEA
● Article 3
● Breadth of the territorial sea
● Every State has the right to establish the breadth of its territorial sea
up to a limit not exceeding 12 nautical miles, measured from baselines
determined in accordance with this Convention.
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Contd
● Article 4
● Outer limit of the territorial sea
● The outer limit of the territorial sea is the line every point of which is
at a distance from the nearest point of the baseline equal to the breadth
of the territorial sea.
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12 nm of TW
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Contd
● Article 7
● Straight baselines 1.
● In localities where the coastline is deeply indented and cut into, or if

there is a fringe of islands along the coast in its immediate vicinity,
the method of straight baselines joining appropriate points may be
employed in drawing the baseline from which the breadth of the
territorial sea is measured.
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Contd
● Article 8
● Internal waters
● 1. Except as provided in Part IV, waters on the landward side of the

baseline of the territorial sea form part of the internal waters of the
State.
● 2. Where the establishment of a straight baseline in accordance with

the method set forth in article 7 has the effect of enclosing as internal
waters areas which had not previously been considered as such, a
right of innocent passage as provided in this Convention shall exist in
those waters.
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Contd
● Article 15
● Delimitation of the territorial sea between States with opposite or

adjacent coasts.
● Equi-distance principle.
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● Clash in delimiting Territorial Waters
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CONTIGUOUS ZONE
● SECTION 4
● CONTIGUOUS ZONE
● Article 33
1. In a zone contiguous to its territorial sea, described as the

contiguous zone, the coastal State may exercise the control necessary
to:
(a) prevent infringement of its customs, fiscal, immigration or sanitary
laws and regulations within its territory or territorial sea;
(b) punish infringement of the above laws and regulations committed
within its territory or territorial sea.
2. The contiguous zone may not extend beyond 24 nautical miles
from the baselines from which the breadth of the territorial sea is
measured.
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EXCLUSIVE ECONOMIC ZONES

● Article 56
● Rights, jurisdiction and duties of the coastal State in the exclusive
economic zone 1
● In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting,

conserving and managing the natural resources, whether living or
non-living and other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the
water, currents and winds.
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Contd
b) jurisdiction as provided for in the relevant provisions of this

Convention with regard to:
(i) the establishment and use of artificial islands, installations and
structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
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Contd
● 2. In exercising its rights and performing its duties under this

Convention in the exclusive economic zone, the coastal State shall
have due regard to the rights and duties of other States and shall act in
a manner compatible with the provisions of this Convention.
● 3. The rights set out in this article with respect to the seabed and
subsoil shall be exercised in accordance with Part VI.
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Breadth of EEZ
● Article 57
● Breadth of the exclusive economic zone
● The exclusive economic zone shall not extend beyond 200 nautical
miles from the territorial waters.
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LAND LOCKED COUNTRIES
● Covered only by land.
● Article 69
● Right to participate on an equitable basis.
● Considering relevant geographical location and economic conditions
● Shall enter into bilateral, sub regional or regional agreements.
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What are considered before entering into treaty?

● (a) the need to avoid effects detrimental to fishing communities or
fishing industries of the coastal State;
● (b) the extent to which the land-locked State, in accordance with the
provisions of this article, is participating or is entitled to participate.
● (c) the extent to which other land-locked States and geographically

disadvantaged States are participating in the exploitation of the living
resources of the exclusive economic zone of the coastal State and the
consequent need to avoid a particular burden for any single coastal
State or a part of it.
● (d) the nutritional needs of the populations of the respective States.
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Contd
● Developed land-locked States shall, under the provisions of this

article, be entitled to participate in the exploitation of living resources
only in the exclusive economic zones of developed coastal States of
the same subregion or region
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Continental shelf
● Article 76
● Definition of Continental shelf
● 200 nautical miles from the territorial waters.
● consists of the seabed and subsoil of the shelf, the slope and the rise.
Excellence and
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Article 77
● Rights of the coastal state over continental shelf
● 1. The coastal State exercises over the continental shelf sovereign

rights for the purpose of exploring it and exploiting its natural
resources.
● 2. The rights referred to in paragraph 1 are exclusive in the sense that

if the coastal State does not explore the continental shelf or exploit its
natural resources, no one may undertake these activities without the
express consent of the coastal State.
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In case of Conflict????
● The countries themselves should come to an agreement.
● Or ICJ will have jurisdiction to settle the dispute based on equitable

proportion.
● NOTE
Martitime Zone UNCLOS I UNCLOS III
Territorial waters Equidistance principle Equidistance principle
Contiguous zone Equidistance principle Equidistance principle
EEZ Equidistance principle ICJ
Continental shelf Equidistance principle ICJ
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NATIONALITY
● Concept of Statelessness
● Nationality and citizenship
● Nationality – relationship of a person with his nation with respect to

international law.
● Citizenship – relationship of a person with his nation with respect to

his domestic law.
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Conventions that speak of Nationality
● Article 15 of the Universal Declaration of Human Rights states that
● “everyone has the right to a nationality” and that “no one shall be
arbitrarily deprived of his nationality nor denied the right to change
his nationality.”
● Article 7 of the Convention on the Rights of the Child states that
● “every child has the right to acquire a nationality.”
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Contd
● Article 5 of the Convention on the Elimination of All Forms of

Racial Discrimination requires States to
● “prohibit and to eliminate racial discrimination in all its forms and to

guarantee the right of everyone, without distinction as to race, colour,
or national or ethnic origin, to equality before the law, notably in the
enjoyment of the following rights . . . the right to nationality.”
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Contd
● The 1954 Convention relating to the Status of Stateless Persons (1954

Statelessness Convention) was drafted in order to guarantee the
protection of these individuals’ fundamental rights.
● Article 1(1) of the 1954 Statelessness Convention defines a stateless

person as “a person who is not recognized as a national by any
State under the operation of its law.”
● India is not a party to this convention and so this convention is not

binding on India.
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Why Nationality in Public International Law?
● Importance of nationality
○ Entitlement to exercise diplomatic protection

○ State responsibility for nationals
○ Determine enemy national
○ Settle jurisdictional disputes
○ Duty to admit nationals
○ Extradition of nationals
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Different terms
● Nationals
● Aliens
● Stateless
● Refugees
● Migrants
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Acquisition of Nationality
● By birth (jus soli)
● By descent (jus sanguinis)
● By naturalisation
● Pure Jus soli – US
● Jus soli + jus sangunis+ Naturalisation – UK, India
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Naturalisation
(i) Marriage-- marriage to a foreign national
(ii) legitimization or adoption of children
(iii) acquisition of domicile
(iv) appoint as govt. official
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Other modes of acquiring citizenship
By Resumption
By Subjugation
By Cession
By Option
By Registration
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Modes of Loss of citizenship
● By release – Germany
● Deprivation – America, India.
● Expiration – America – Naturalisation – 3 yrs
● Renunciation – India
● Termination – India
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CHRIST
Determine citizenship in the following case
Child
Born in
India
Mother Father
Indian Indian
citizen Citizen
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Instance 2
Child
Born in
India
Mother Father
Indian
Not Indian Citizen
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Instance 3
Child
Born in
India
Mother Father
Illegal Indian
Migrant Citizen
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Instance 3
Child
Born in
India
1. Father Indian 2. Father renounces
citizen at the time of Indian citizenship after
his child’s birth the birth of his child
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Nottebohm case
● Facts
● Nottebohm was born in Germany, and was a German citizen, although

he lived in Guatemala since 1903, and conducted a prosperous
business there, but never became a citizen of Guatemala.
● In October 1939, he applied for the Liechtenstein citizenship.
● World war II and Liechtenstein is a neutral country.
Excellence and
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Contd
● He acquired the citizenship through naturalisation.
● He paid taxes for an year.
● He proved that he was a continuous visitor as he frequently visited his

brother who resided in Liechtenstein .
● He returned to Guatemala ( a country in Central America) in the early

1940.
● But he was not allowed to enter and Guatemala confiscated his

property.
Excellence and
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ISSUES
● Whether Guatemala is under obligation to honour the citizenship

granted by Liechtenstein?
● Whether Guatemala should pay reparation to Liechtenstein and

Nottebohm?
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Decision
● International Court cannot interfere in the domestic law.
● But when two countries recognises him as their national, then public
international law comes into picture.
● Meaningful nationality.
● Intention to reside and settle.
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EXTRADITION
● ex and traditum - means delivery of criminals.
● Extradition is the delivery of an accused or a convicted individual to

the state on whose territory the alleged crime has taken place or he has
been convicted of a crime, by the state on whose territory the alleged
criminal happens to be residing for the time being.
● Are countries bound by legal obligation to extradite?
● Is treaty a pre-requisite to ask for extradition?
Excellence and
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CHRIST
Process of Extradition
● Countries involved
Requesting State
Territorial State
Principles that govern extradition
● Influence of nationality on extradition - ‘Aut tradere, aut judicare’

(either extradite or judge)
● Principle of extraditable offences.
● The principle of double criminality
Excellence and
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Contd
● Principle of ‘Non bis in idem’ – no extradition if already tried.
● The principle of specialty
● The principle of capital punishment.
Excellence and
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CHRIST
Approaches to extradition
● Non inquiry – USA
○ Hands of executive
○ Not to inquire much into other country’s domestic laws and courts
○ Based on the presumption that one day that country may need the favor returned.
○ Based on the assumption that the accused would have fair trial.
Excellence and
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Judiciary Approach – India and Europe Countries
● The judiciary asserts an active role in determining whether particular

cases merit extradition.
● Not decided on per se manner.
● India - Extradition Act, 1962
● Section 4 – application to Central government
● Section 5 – Magisterial enquiry if the government thinks it fit.
● Section 7 – Extradition only if that is a prima facie case.
Excellence and
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ASYLUM - REFUGEES
● Article 1(A)(2) of the 1951 Convention defines a refugee as an

individual who is outside his or her country of nationality or
habitual residence who is unable or unwilling to return due to a
well-founded fear of persecution based on his or her race, religion,
nationality, political opinion, or membership in a particular social
group.
● Article 14(1) of the Universal Declaration of Human Rights (UDHR),

which was adopted in 1948, guarantees the right to seek and enjoy
asylum in other countries.
Excellence and
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Rights of Refugees
● Non- refoulement
● Freedom of movement
● Right to liberty and security of that person
● Right to life
Excellence and
Service
CHRIST
Non - refoulement
● Article 33 of the Refugee Convention contains the non-refoulement

obligation.
● Article 33(2) refers to the exceptions to the non-refoulement principle

which are
● (1) danger to the security of the country and
● (2) convicted of a serious crime.
Excellence and
Service
CHRIST
"No one leaves home unless,

home is the mouth of a shark;
No one puts their children in a boat,
unless the water is safer than the land;”
-Warsan Shire
Excellence and
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CHRIST
Settlement of Disputes
● Article 33 of the Charter states that any dispute that is likely to

endanger the maintenance of international peace and security should
first be addressed through negotiation, mediation or other peaceful
means, and states that the Council can call on the parties to use such
means to settle their dispute.
Excellence and
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NEGOTIATION
● Negotiation is a method by which people settle differences.
● It is a process by which compromise or agreement is reached while

avoiding argument and dispute.
● It involves only the States parties to the dispute, those States can
monitor all the phases of the process from its initiation to its
conclusion and conduct it in the way they deem most appropriate.
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Contd
● It is often conducted by putting forward a position and making small

concessions to achieve an agreement.
● The degree to which the negotiating parties trust each other to

implement the negotiated solution is a major factor in determining
whether negotiations are successful.
Excellence and
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ENQUIRY
● One of the common obstacles preventing the successful settlement of

a dispute by negotiation is the difficulty of ascertaining the facts
which have given rise to the differences between the disputants.
● Fact finding process.
● The two Hague Conventions of 1899 and 1907 established

commissions of inquiry as formal institutions for the pacific
settlement of international disputes.
Excellence and
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Contd
● Enquiry as a separate method of dispute settlement has fallen out of

favor. It has been used as part of other methods of dispute settlement.
● Its purpose is to produce an impartial finding of disputed facts and

thus to prepare the way for settlement of dispute by other peaceful
methods.
● The parties are not obliged to accept the findings of the enquiry
Excellence and
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Mediation
● Use of an independent, impartial, and respected third party (called the

conciliator or mediator) in settlement of a dispute, instead of opting
for arbitration or litigation.
● Arbitration v. Mediation
● Negotiation v. Mediation
● Conciliation v. Mediation
● Mediation is a dynamic, structured, interactive process where a

neutral third party assists disputing parties in resolving conflict
through the use of specialized communication and negotiation
techniques.
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Contd
● Mediation is a "party-centered" process in that it is focused primarily

upon the needs, rights, and interests of the parties.
● Benefits
■ Cost effective
■ Mutual participation
■ Confidentiality
■ Control over mediation process
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Conciliation
● It is a process of settling a dispute by referring it to a specially

constituted organ whose task is to elucidate the facts and suggest
proposals for a settlement to the parties concerned.
● However, the proposals of conciliation, like the proposals of

mediators, have no binding force on the parties who are free to accept
or reject them.
● The conciliators are appointed by the parties to a dispute
Excellence and
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Alternate Dispute Resolution Mechanisms

Arbitration Mediation Negotiation Conciliation
Award is binding Parties reach solution Parties to the dispute Third neutral party
Mediator is a facilitator Conciliator is appointed

Moderator of the by the parties
discussion
Formal process Informal process
Mediator cannot suggest Find and recommend

solutions solutions
Excellence and
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CHRIST
ICJ – ADJUDICATING BODY
● Successor of PCIJ
● Head quarters – The Hague
● Principle judiciary organ in UN.
● April, 1946 – First hearing
● First case – Corfu Channel case
● The ICJ comprises a panel of 15 judges elected by the General

Assembly and Security Council for nine-year terms.
Excellence and
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CHRIST
JURISDICTION
● Article 36
● Special agreements
● Treaties and other convention
● Compulsory jurisdiction
● Advisory jurisdiction
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Advisory opinion
● Nuclear Weapons advisory opinion case
● Opinion initially sought by WHO
● ICJ refused to provide advice
● Advice on the same issue was sought by General Assesmbly
● ICJ provided the advice
Excellence and
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ISSUES
● Whether General Assembly is competent to ask for advice?
● Did treaty or customary law authorize the use of nuclear weapons?
● Did treaty or customary law contain a “comprehensive and universal”

prohibition on the threat and use of nuclear weapons?
● Will the threat or use of nuclear weapons be lawful in self defense in

situations where the very survival of the State is at stake?
Excellence and
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Law involved
● Article 65 (1) of the Statute of the ICJ to provide an advisory opinion,

when it is requested by a “competent organ of the United Nations”.
● The Court may give an advisory opinion on any legal question at the
request of whatever body may be authorized by or in accordance with
the Charter of the United Nations to make such a request.
Excellence and
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Contd
● Secondly, the General Assembly is a “competent organ” because it

is authorized by Article 96 (1) of the United Nations Charter to
request an advisory opinion from the Court. The Court says that:
● The General Assembly or the Security Council may request the

International Court of Justice to give an advisory opinion on any legal
question
Excellence and
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CHRIST
DECISION
● Court concluded that it had jurisdiction.
● Whether to give advice or not is in the discretion of the Court.
● The Court can refuse to provide advisory opinion by using it’s

discretionary power.
● Court cannot be compelled to give advice.
Excellence and
Service

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PUBLIC INTERNATIONAL LAW

MISSION VISION CORE VALUES

IS INTERNATIONAL LAW REALLY A LAW????

Positivist School - John Austin

“Law is the command of the sovereign”

1. Command 2.Sovereignty 3. Sanctions

Austin wrote in The Province of Jurisprudence Determined that:

IS INTERNATIONAL LAW REALLY A LAW????

HOLLAND- International Law is the vanishing point of

● Rules of international law are followed by courtesy.

According to Dias, “International Law is obeyed and complied with

“International law is a collection of rules governing relations between

The term was coined by the English philosopher Jeremy Bentham

● OPPENHEIM’s DEFINITION OF PUBLIC INTERNATIONAL

● New Definition of International Law in Latest Edition of

● "International Law is the body of rules which are legally binding on

● MOST ACCEPTED DEFINITION

(a) The rules of law relating to the functioning of international institutions or

PUBLIC INTERNATIONAL LAW PRIVATE INTERNATIONAL LAW

TRUE BASIS OF INTERNATIONAL LAW

● There can be no POSITIVE LAW.

● Must follow JUS COGENS

● Source - The Basis of International Law: Why NationsObserve,

● John Locke’s State of Nature

Connecting Consent theory and ICJ

○ Application of John Locke’s consent theory to Public International Law

THEORY OF AUTO LIMITATION

● Also called as 1. Theory of self limitation

Attribution of will to states

George Jellinck – Superior will of state to be bound by conventional rules

No other body can curtail their sovereignty. If their sovereignty is to be

● States have free will

● It declares that state could only be obliged to comply with

● Third World -- Imperialised Countries

1. End the domination of European Countries.

● 1996- Harvard Law School students came together to discuss the

● Antony Anghie and Chimni coined the terms

● TWAIL I - refer to the scholarship produced by that first generation of

● TWAIL II - scholars questioned the conditions of the South from a

● A prominent Third World jurist, Mohamed Bedjao has observed that

Europe as the center

Christianity as the basis for civilization

Capitalism as innate in humans

● The United Nations, formed after World War II by the dominant

● The new global order had two important legitimating features,

1. Non-European powers were now recognized as having the right

2. Second, states were to be governed by human rights.

● Security Council – Sovereign equality principle is violated.

● Veto Power - China, France, Russia, United Kingdom, and United

● TWAIL – termed veto power as post-colonial subjugation or as

INDIA and TWAIL

● TWAIL I – scholars spoke about the effects that colonialism had on

● TWAIL II – they ‘opposed to the unjust global order’

INDIA AND TWAIL

● Non – Aligned movement by Jawaharlal Nehru.

● Panchasheel agreement with China.

1. Mutual respect for each other's territorial integrity and sovereignty.

India and TWAIL

● It has a permanent secretariat in Kathmandu, Nepal. The organization

● The Association of South East Asian Nations (ASEAN) signed a Free

● Sources of Public International Law

● Article 38 (1) of Statute of ICJ, 1945